The D.C. Circuit Court of Appeals decision in favor of defendants can be read here.
Judge Sentelle writes for the court, which affirms the lower court.
The United States Court of Appeals for the District of Columbia Circuit yesterday issued this order summarily denying Earle Partington’s motion to file this post-argument memorandum addressing what “other lawyers” means in R.C.M. 109, which tasks the Judge Advocates General with the professional supervision and discipline of judge advocates and “other lawyers” who practice in courts in their respective services.
The case appears to be on a glide-path to affirmance, though likely on a somewhat different basis than that adopted by the district court.
Counsel for Earle Partington today filed this post-argument memorandum with the D.C. Circuit arguing that R.C.M. 109’s use of the term “other lawyers” (as in the Judge Advocate General may discipline judge advocates and “other lawyers”) doesn’t include civilian counsel appearing at courts-martial.
The post-argument memorandum contends that subjecting civilian counsel to discpline by a Judge Advocate General exceeds the scope of the President’s delegated authority under Article 36 (which the memorandum misquotes) because that article is limited to the adoption of pretrial, trial, and post-trial procedures “for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals.” Partington reasons that his disciplinary proceeding isn’t a miltiary tribunal under the UCMJ and that, in any event, he isn’t subject to UCMJ jurisdiction pursuant to Article 2.
That misses the point. The relevant procedural rule governs who may appear as counsel in a court-martial to represent the accused. Congress delegated to the President the authority to answer that question. As a result of the disciplinary proceedings against Mr. Partington, he may not represent the accused in a naval court-martial. So by authorizing the Judge Advocate General to suspend a lawyer from court-martial practice (or impose other forms of discipline), the President was adopting a procedural rule for cases being tried by courts-martial. Hence, R.C.M. 109 was adopted pursuant to the President’s delegated power under Article 36.
The Supreme Court has quoted the adage that “a lawyer who represents himself has a fool for a client.” Kay v. Ehrler, 499 U.S. 432, 437 (1991). But Earle Partington’s pro se appearance before the D.C. Circuit this morning disproved that adage. His case was a loser no matter who argued it. It would have been foolish for him to pay another lawyer to tilt at the windmill rather than playing the role of Don Quixote himself for free.
Mr. Partington’s case arises from his indefinite suspension from practice before naval courts and boards – a disciplinary measure meted out by Vice Admiral Houck arising from a brief that Mr. Partington filed at NMCCA in a case in which he had also been the trial defense counsel. NMCCA determined that the brief included “clear misrepresentations of the record.” As a result of his indefinite suspension from naval courts, he was later suspended from practice in Hawai’i for 30 days and by CAAF for a year. In the matter of Earle A. Partington, 69 M.J. 408 (C.A.A.F. 2010). Mr. Partington brought suit in the United States District Court for the District of Columbia challenging his suspension by the Judge Advocate General of the Navy, as well as by CAAF. The district court granted judgment for the defendants, Partington v. Houck, 840 F. Supp. 2d 236 (D.D.C. 2012), leading to today’s oral argument in the D.C. Circuit.
The argument would feature ruminations on CAAF’s historic nicknames, a fashion faux pas, and an assault on uniformed military defense counsel followed by a judicial endorsement of their zealousness. The argument didn’t feature any reason to doubt the case’s outcome: a loss for Mr. Partington.
Mr. Partington began by asking for leave to appear on his own behalf because his counsel was involved in a political corruption trial in Massachusetts. Chief Judge Sentelle observed that Mr. Partington’s brief was also signed by a Virginia attorney (Charlie Gittins). Mr. Partington replied that the Virginia attorney was also out of town and that it had never been contemplated that he would argue the case.
Here’s an unexpected development. Earle Partington today filed this notice that he intends to personally argue his case before the D.C. Cicuit on Wednesday. I’d already put in for vacation tomorrow morning — I’ll be there and will report on the events later in the day.
The DC Circuit today issued this order giving each side 15 minutes to present oral argument in the Partington case on 12 December. I plan to be there; I’ll report on the festivities later that day.
Just two weeks before oral argument, Earle Partington’s counsel have filed this perplexing motion asking the D.C. Circuit to order the Navy defendants to answer allegations from his complaint.
The motion recycles previously made arguments and takes a particularly aggressive (and, in my view, unfortunate) stance toward opposing counsel. For example, the motion asserts, “Since Partington filed this action in the district court, the Navy defendants and government counsel have responded with a barrage of factual misrepresentations and bad faith legal arguments to support the Navy defendants’ bogus action against him.” Motion at 11-12. The motion suggests, “This court should issue an order to show cause to the Navy defendants and government counsel as to why they should not be sanctioned for their individual and collective misconduct.” Id. at 12. Later, the motion argues that “the Navy defendants have no compunction about outright factual misrepresentations.” Id. at 15. The motion concludes:
The point Partington is seeking to make here is that the Navy defendants have been less than truthful with this court. By forcing them to answer the relevant paragraphs of the complaint at this time, an injustice to Partington will be avoided and the sanctionable conduct of these appellees and government counsel will be exposed. If this case is remanded as it must be, these defendants will have to answer the complaint so there is no prejudice in requiring an answer now. Further, an answer now will avoid a potential fraud upon the court.
Id. at 19-20.
I find it unlikely that the D.C. Circuit will find such ad hominem attacks to be persuasive.
On Tuesday, Earle Partington’s lawyers filed this reply brief in his appeal currently pending before the D.C. Circuit challenging the Judge Advocate General of the Navy’s imposition of professional responsibility discipline against him. Among other claims, Mr. Partington challenges the Judge Advocate General’s authority to discipline a civilian counsel.
Oral argument in the case will be heard on 12 December.
On Wednesday, 12 December, the United States Court of Appeals for the District of Columbia Circuit will hear oral argument on the challenge to the Navy’s professional responsibility disciplinary system in Partington v. Houck, No. 12-5038. The panel will consist of Judges Sentelle, Tatel, and Kavanaugh.
That’s not a CAAF oral argument day, so I’m hopeful I’ll be able to attend.
Here’s the brief that DOJ filed on behalf of the appellees in the D.C. Circuit in Partington v. Houck, No. 12-5038.
We’ve posted it here.
Earle Partington’s counsel today filed this motion for summary reversal of the federal district court ruling granting summary judgment against him.