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, E126.96.36.199., 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.