All the talk in this post about possibility of military discipline for General Petraeus reminded me about Colonel Spelman’s collateral challenge to the Army’s judge advocate professional responsibility system, last discussed in this 2013 post.

The Colonel – an Army judge advocate currently serving on the retired list – pleaded guilty at a general court-martial in 2012 to adultery and related charges (we mentioned the case in this post). He was subsequently notified that the Judge Advocate General of the Army (TJAG) intended to withdraw his 27(b) certification, indefinitely suspend him from practice under TJAG and before Army courts-martial, and notify his state licensing authorities. In response, the Colonel filed suit against TJAG in United States District Court for the District of Columbia, alleging violations of the Administrative Procedure Act and seeking a temporary restraining order and a preliminary injunction.

District Judge Richard J. Leon denied the request for a preliminary injunction (discussed in my 2013 post). Then, on August 21, 2014, Judge Leon granted the Government summary judgment. Judge Leon’s ruling is available here. Best I can tell, the Colonel has not appealed. Analysis of the ruling follows.

The ruling begins with some key facts:

On September 6, 2012, plaintiff pleaded guilty in a general court-martial to offenses related to an extramarital affair he had with a subordinate officer-attorney in 2008 and 2009 while they were stationed in Iraq. He was sentenced to sixty days confinement, ordered to forfeit $4,000 of pay per month for five months, and reprimanded for his conduct. Following execution of his sentence, plaintiff elected reassignment to the Retired Reserve rather than separation for misconduct under Army Regulation 135-175. Plaintiff entered the Retired Reserve on February 1, 2013. Prior to doing so, however, plaintiff-through his civilian law firm-notified each of his state bar licensing authorities and clients of his general court-martial conviction.

R. at 2-3 (citations omitted). TJAG subsequently took four actions:

(1) withdrawal of plaintiffs certification under Article 27(b) of the Uniform Code of Military Justice;

(2) indefinite suspension from practice before Army courts-martial and the U.S. Army Court of Criminal Appeals (“ACCA”);

(3) indefinite suspension from performing Judge Advocate duties or practicing law in any capacity in any area of practice under the cognizance of TJAG; and

(4) notification of plaintiffs state bar and other licensing authorities of the disciplinary action.

R. at 7 (paragraphs added). Colonel Spelman challenged these actions on numerous grounds:

Plaintiff argues that TJAG lacks the statutory and regulatory authority to impose discipline on him as a member of the Retired Reserve. Plaintiff further argues that TJAG failed to comply with Army regulations while imposing the discipline. Finally, plaintiff argues that TJAG’s imposition of discipline on him was a violation of plaintiff’s constitutional right to due process.

R. at 7-8 (citations omitted).

Judge Leon analyzes – and rejects – each basis independently, but it’s the Colonel’s decision to elect reassignment to the retired reserve (where he receives retired pay and benefits) rather than separation outright that proves dispositive in his case. Judge Leon’s opinion explains:

Following the imposition of his court-martial sentence, plaintiff elected to enter the Retired Reserve in lieu of separating from the Army. This decision, of course, was totally voluntary. See Def. App. at 49 (U.S. Dep’t of Defense Instr. 1215.06, E5.1.3.4., Uniform Reserve, Training, and Retirement Categories (Dec. 24, 2008)) (“Former members having completed 20 satisfactory years of service creditable for non-regular retirement, but electing to be discharged from the [Reserve Components], are not a part of the Retired Reserve and have no military status.”) (emphasis added). Having done so, it strains credulity for plaintiff to now argue that he is no longer subject to the authority of TJAG-the officer tasked by Congress with directing Judge Advocates in the performance of their duties. See 10 U.S.C. § 3037.

Plaintiffs decision to enter the Retired Reserve-rather than separate from the Army-made him available for activation as a Judge Advocate at any time, see 10 U.S.C. § 688, and thereby subject to TJAG’s authority under 10 U.S.C. § 3037. Retired Reserve “retain their status as Reserves, and are otherwise qualified” for duty. 10 U.S. C.§ 10154(2). Any ruling stating that TJAG lacks the authority to ensure the qualifications of those in the Retired Reserve-who may be activated to serve as Judge Advocates-would do major harm to the maintenance of an effective Retired Reserve and would be contrary to the statutory language of 10 U.S.C. § 10154. See id.

TJAG’s statutory authority over plaintiff-and Judge Advocates generally-is further derived from the UCMJ. . . . That plaintiff is not currently serving as an active duty JudgeAdvocate is no consequence. As plaintiff is subject to activation at any time, it remains the duty of TJAG to ensure his fitness for duty should he be recalled.

R. at 9-11 (some citations omitted).

Having thus rejected the lack of authority claim, Judge Leon then addresses the alleged procedural deficiencies. First is fact that TJAG imposed discipline “without an independent review of the case by a Senior Supervisory Judge Advocate (“SSJA”).” R. at 12. Judge Leon finds that this is not a deficiency because the facts leading to the imposition of professional discipline were “extensively investigated during [the Colonel’s] general court-martial – and documented in the court-martial file,” eliminating the requirement for a preliminary screening inquiry and an independent review by a SSJA (whose purpose is to review the preliminary screening inquiry). R. at 15. Next, Judge Leon considers the due process challenge, rejecting it as insufficiently pleaded:

Courts in this Circuit have repeatedly found that “[t]here is no protected property interest in continued military service.” Spadone v. McHugh, 864 F. Supp. 2d 181, 189 (D.D.C. 2012) (citing Wilhelm v. Caldera, 90 F. Supp. 2d 3, 8 (D.D.C. 2000)); see also Knehans v. Alexander, 566 F.2d 312,314 (D.C. Cir. 1977) (holding plaintiff”had no constitutionally protected entitlement to continued active duty as a commissioned officer in the Army”); Smith v. Harvey, 541 F. Supp. 2d 8, 15 (D.D.C. 2008) (stating that there is “no constitutionally-protected property interest in continued military service”). Given that the law of our Circuit is so clear, [N.14] plaintiff has not sufficiently pled the elements of a Fifth Amendment due process violation and thus this claim must also fail. [N.15]

R. at 16-17. The footnotes add:

14 Indeed, if there is no protected property or liberty interest in continued military service generally, there can certainly be no such interest in continued service in a particular military occupation. See Partington v. Houck, 840 F. Supp. 2d 236, 242 (D.D.C. 2012) (“Plaintiff has no cognizable liberty interest in the limited practice of law before naval courts.”)14 ; see also Wilhelm, 90 F. Supp. 2d at 8 (“Plaintiff has no due process right to practice medicine in the U.S. Army.”). The D.C. Circuit questioned (in dicta) the rationale behind the District Court’s finding in Partington-that there was no protected property interest in continued service as a military lawyer. See Partington v. Houck, 723 F.3d 280, 287 (D.C. Cir. 2013). Nevertheless, the D.C. Circuit agreed with the District Court’s judgment and affirmed the dismissal of plaintiffs Fifth Amendment due process claims. See id.

15 Even assuming, arguendo, that plaintiff had identified the deprivation of a protected property or liberty interest; it would be of no consequence, as I find that plaintiff was afforded sufficient due process under the circumstances, as discussed more fully in Section III above.

R. at 17.

10 Responses to “A failed challenge to the Army’s professional responsibility system”

  1. stewie says:

    Is his state board going to even care about adultery? Heck in some states you can still have sex with your clients.

  2. RKincaid3 (RK3PO) says:

    I presume “no,” Stewie, as it is my understanding that he is currently practicing law at a pretty prestigious, well-established law firm in Massachusetts.  So, my guess is that by self-notifying the state bar voluntarily and well before the TJAG took action, he effectively inoculated himself and took the sting out of the TJAGs notification to the state licensing authority.  Plus, as a former candidate for high, public, elected office in Massachusetts, he had the Petraeus “public figure” factor on his side.  It will take a lot more than adultery to derail so storied a personality.
    Of course, that takes us back to “why” is adultery even an offense except in those rare, but absolutely clear cut cases where the adultery TRULY (vice “may,” “might,” or “could have”) affected GOADITAF or was service discrediting (wholly apart from the publicity of the government’s prosecution of same)?  Adultery makes one a slime ball who is disloyal to their marrital mate, but it doesn’t–except in the most puritanical sense–make one an evil, cruel or damnable human, a bad attorney or a threat to public confidence or unable to do their job–either an elected official or as an employee.  Obviously, that statement ignores the blackmail potential of such conduct and the inevitable conflict of interest that occasions such blackmail–but that potential might not be as powerful were it not for the conduct being a crime apart from its mere sliminess.

  3. TV says:

    Concur that the only straight face, non-puritanical, reason to keep the Scarlet A on the books is to address clear GO&D cases e.g where a senior leader starts poaching the spouses of deployed service members from his unit.  However, another possible argument for keeping the crime is that it perhaps lessens the temptation to enter a sham BAH marriage.  A service member interested in getting more money (and moving out of the barracks) might be less inclined to wed a target of convenience if he knows that he must forsake all others.  That fiduciary justification could easily be addressed by eliminating the monetary incentive for marriage and paying everyone a single BAH rate regardless of marital status.   Finally, has anyone tried to challenge the crime of adultery on some kind of equal protection grounds in that homosexual spouses are not criminally liable under the article for extra-marital dalliances?   Unless the definition of “sexual intercourse” has been expanded, it would seem that the offense only has a heterosexual application.  

  4. RKincaid3 (RK3PO) says:

    TV:  You are correct that until the definition of “sexual intercourse” is changed by Congress, same-sex married couples cannot, by legal, statutory definition, commit adultory.
    Funny how Congress can so quickly and easily screw up Art 120 (in the name of “equal justice” for rape vicitms??) but they cannot likewise fix such an obvious inequality as criminalizing only the adulterous heterosexual couple in post-DADT world in which we now live and operate.
    Just goes to show that politicians only respond to “causes” that get them headlines–not because they truly wish to “serve” the public.

  5. brian lc says:

    Pretty sure Congress your rant at Congress is misplaced.  Adultery is a 134 offense.

  6. RKincaid3 (RK3PO) says:

     Yes, I know, brian lc. I offered 120 as another example of how they screwed up, not as the source of adultery.  It was offered in the context, also, of how Congress can run roughshod and blindly over an entire statutory scheme and screw it up without any consideration for the collateral consequences.  How else does one explain the repeal of DADT with out redefining “sexual act” to account for the substantive change in private relationships?  The same way that one guts the UCMJ of what few due process protections it had.  No.  This situation is typical Congress.
    But I did NOT say adultery was a 120 offense.  You either misunderstood what I wrote, or, once again, I was less than articulate. 

  7. brian lc says:

    RK3, It was your statement that until Congress redefines “sexual intercourse” and that “they [Congress] cannot fix such an obvious inequality [with regards to adultery]”  that threw me.  Congress has done nothing with regards to adultery except delegate to the President.  The President could redefine it tomorrow, or apply adultery to same sex couples, are 86 the entire thing. 
    The definition and criminality of adultery depends only on the President, not Congress.  (Which of course is not to say that one can’t find blame in both branches on occasion).

  8. RKincaid3 (RK3PO) says:

    brian lc:  That does seem to me to be a true distinction without a significant difference.  Does it really matter which of the two entities is responsible–directly or via delegation–for doing right (e.g., setting equal, uniform and reasonable standards/rules/laws) by those who volunteer to serve the nation via the military? 
    The bottom line is that too many people are quick to just accept the mess and cry “c’est la vis” instead of pinning the tail on the politicians who can’t seem to grasp that what they are doing and have done to the military–whether it is screwing up Art 120 or failing to fix the definition of “sexual intercourse” (to cover the post-DADT conduct and provide uniform governance) or sequestering (and sapping) the military services in what can only be described as the most violent world that one can contemplate outside of the middle ages. 
    I would like to see less defense of the indefensible through such nit-picking distinctions as you have drawn and more demands for accountability from those who assert the military is not and has not been accountable enough.  The bottom line is that either Congres of the POTUS could fix the issue and either pointing the finger of blame at the other–using excusing their doing so–is the antithesis of leadership.

  9. brian lc says:

    I’m fairly certain that many people are not saying “c’est la vis” [sic] and are trying to affect change.  Maybe they are even trying to change the definition of sexual intercourse…just hopefully not with Congress.  (cause that’s more of an issue on basic code structure, less nit-pickyish.  Now, correcting la francais, completely nit-picky, and worthy of ridicule, but then I wasn’t named Brian le chien without reason).

  10. RKincaid3 (RK3PO) says:

    Ha.  Nice….like it!