CAAFlog » Professional Responsibility » Partington

The D.C. Circuit has set this briefing schedule for Partington v. Houck:

APPELLANT Brief due 08/17/2012. APPELLEE Brief due on 09/17/2012. APPELLANT Reply Brief due 10/01/2012

The D.C. Circuit today denied DOJ’s motion for summary affirmance in Partington v. Houck.  In this order, the court ruled that “[t]he merits of the parties’ positions are not so clear as to warrant summary action” and ordered that the case be scheduled for oral argument.  In the same order, the court also denied the plaintiff’s motion to, in essence, receive a preliminary injunction ordering the relief he seeks pending the decision on appeal.

On Tuesday, DOJ filed this opposition to the appellant’s motion asking the D.C. Circuit to compel the Judge Advocate General of the Navy to withdraw his order suspending Mr. Partington from practicing before naval courts and boards.

DOJ today filed this reply to the appellant’s opposition to DOJ’s motion for summary affirmance in Partington v. Houck, No. 12-5038, currently pending in the United States Court of Appeals for the District of Columbia Circuit.

Earle Partington’s counsel, Charlie Gittins, today submitted this filing to the United States Court of Appeals for the District of Columbia Circuit.  It both opposes the Appellees’ motion for summary affirmance and moves for an order requiring the Judge Advocate General of the Navy to withdraw the previous discipline he imposed on Mr. Partington and to notify the jurisdictions that the Navy previously notified of the disciplinary action of its withdrawal.

The motion also includes a helpful extract from the Toles record of trial that casts greater light on the dispute.  The military judge in the case — CAPT Wynn, who now sits on the United States Court of Appeals for the Fourth Circuit — twice referred to entering a finding of not guilty when, in context, it appears he meant to refer to entering pleas of not guilty.  Is it misconduct for a lawyer to treat the military judge as having done what the literal meaning of his words indicate he did?  [Note that this issue may not have been the sole basis for the disciplinary action against Mr. Partington.]

Here’s the Statement of the Issues Presented for Review from the appellant’s brief to the D.C. Circuit in Partington v. Houck, No. 12-5038 (the complete brief is available here):

A.  DOES THE NJAG HAVE THE STATUTORY AUTHORITY TO IMPOSE DISCIPLINE UPON CIVILIAN ATTORNEYS WHO APPEAR AT NAVAL COURTS-MARTIAL?

B.  DO CIVILIAN ATTORNEYS HAVE ANY RIGHT TO PROCEDURAL DUE PROCESS IN ATTORNEY DISCIPLINARY PROCEEDINGS BROUGHT BY NJAG?

C.  ARE THE ACTIONS OF NJAG AND CAAF AGENCY ACTIONS SUBJECT TO REVIEW UNDER THE APA OR, ALTERNATIVELY, ARE THEY SUBJECT TO MANDAMUS REVIEW?

D.  DOES PARTINGTON HAVE A CLAIM FOR BIVEN DAMAGES AGAINST THE INDIVIDUAL NAVY DEFENDANTS FOR THEIR ACTIONS?

E.  SHOULD PARTINGTON’S MOTON FOR A PRELIMINARY INJUNCTION AGAINST THE NJGA TO ENJOIN HIS PURPORTED DISCIPLINARY ACTIONS HAVE BEEN GRANTED?

Here’s the brief that Charlie Gittins filed today in the D.C. Circuit on behalf of Earle Partington in the case of Partington v. Houck, No. 12-5038.

Judge Scullin’s decision in the case, which has been designated for publication in F. Supp. 2d, is available here.  We discussed the opinion here.

DOJ’s motion for summary affirmance by the D.C. Circuit is available here.

DOJ today filed this motion for summary affirmance with the D.C. Circuit in Partington v. Houck, No. 12-5038.

Several filings were made today in the Partington v. Houck, No. 12-5038, appeal to the D.C. Circuit.  The most interesting among them was this preliminary statement of the issues Mr. Partington’s counsel — Charlie Gittins — intends to raise:

1.  Whether the Distirct Court erred in finding the Navy Judge Advocate General (“NJAG”) has the statutory authority to discipline the plaintiff-appellant, a civilian defense attorney, who represents clients before the Navy and Marine Corps criminal and administrative proceedings, where no language appears to exist in the Uniform Code of Military Justice (“U.C.M.J.”) that reflects a legislative intent providing the NJAG authority to discipline civilian attorneys.

2.  Whether the District Court erred in deciding that plaintiff-appellant has no right to procedural due process in attorney disciplinary proceedings brought by the NJAG, and thus denied any damages sought pursuant to a claim under Bivens v. Six Unknown Fed. Narcotics Agents, 402 U.S. 388 (1971), where the plaintiff-appellant was never given notice by the NJAG that a Naval proceeding concerning him was disciplinary in nature and resulted in his indefinite suspension from practicing law in any Navy and Marine Corps criminal and administrative proceedings, depriving him of a significant property interest.

3.  Whether the District Court erred in finding that neither the NJAG nor the Court of Appeals for the Armed Forces (“C.A.A.F.”) may be subject to review under the Administrative Procedures Act or whether in the alternative the DC should have treated the Complaint as a Petition for Writ in the nature of mandamus.

4.  Whether the District Court erred in failing to conduct a Preliminary Injunction hearing against the NJAG to enjoin all disciplinary action against plaintiff-appellant.

Earle Partington today filed this notice of appeal — with Charles Gittins as his counsel.

We’ve posted the opinion here

Judge Scullin initially holds that the Judge Advocate General of the Navy had the authority to discipline Mr. Partington. Judge Scullin relies on Article 36’s delegation of procedural rule-making authority to the President.  He also notes that, in connection with the case that led to the disciplinary proceeding against him, Mr. Partington had certified that he was familiar with and agreed to abide by authorities including the Navy Rules of Professional Conduct.  “Therefore, pursuant to clear constitutional and statutory authority, the Court finds that the Navy JAG had the authority to initiate disciplinary proceedings and ultimately suspend Plaintiff, a civilian attorney, from the practice of law before naval courts. Furthermore, given Plaintiff’s certification that he would abide by all rules and regulations for such proceedings, he cannot now reasonably assert that the naval court before which he argued lacked jurisdiction over him to impose discipline.”  Partington v. Houck, No. 1:10-CV-162, slip op. at 6-7 (D.D.C. Jan. 10, 2012).  Judge Scullin also rejected Mr. Partington’s argument that CAAF had no authority to impose reciprocal discipline on him since that claim rested on the premise that the Judge Advocate General of the Navy’s discipline was null and void.  Id., slip op. at 7 n.4.

Judge Scullin then rejected a due process challenge to Mr. Partington’s suspension, concluding that Mr. Partington “has not demonstrated a legitimate claim of entitlement to the practice of law before [naval] courts.”  Id., slip op. at 8.  He therefore “has no cognizable property interest in this limited practice of law.”  Id.  He reasoned: “Plaintiff has cited no . . . source of law, state or federal, to support his argument that a lawyer has a constitutionally-protected property interest in his ability to represent clients before naval courts.  Although Plaintiff’s business may suffer as a result of his suspension, this alone is insufficient to warrant the relief Plaintiff seeks because Defendants have not wholly deprived him of his law license or his ability to practice law.”  Id.  Judge Scullin also rejected the argument that Mr. Partington has a constitutionally “cognizable liberty interest in the limited practice of law before naval courts.”  Id., slip op. at 9.

Having concluded that the Due Process Clause did not apply to Mr. Partington’s suspension from practice before naval courts, Judge Scullin noted that “the Court need not address what process is due or whether or not that process was provided to Plaintiff.”  Id.

Judge Scullin then analyzed whether the decision to discipline Mr. Partington could be challenged under the Administrative Procedures Act.  Judge Scullin held that CAAF, as a Court of the United States, isn’t an “agency” for APA purposes and therefore dismissed the APA claim against CAAF.  Id., slip op. at 1o-11.  Then, citing McKinney v. Caldera, 141 F. Supp. 2d 25 (D.D.C. 2010), aff’d sub nom., McKinney v. White, 291 F.3d 851 (D.C. Cir. 2002), Judge Scullin held that the Judge Advocate General of the Navy isn’t an “agency” for purposes of the APA and, therefore, dismissed the APA claim against that official as well.

Finally, Judge Scullin dismissed Bivens claims against four defendants in their individual capacities because “Plaintiff has not identified a constitutionally-protected Fifth Amendment liberty or property interest in the limited practice of law before naval courts.  . . .  [The Court does not] need to analyze Plaintiff’s Bivens claim any further because the only constitutional rights at issue concern potential due process violations.”  Id., slip op. at 13.  Judgment was entered in the Defendants’ favor.

We’ll continue to monitor the case to see if an appeal is filed in the D.C. Circuit.

The following notice appeared on the Partington v. Houck docket today:

TEXT ORDER Cancelling Oral Argument. Due to an unanticipated circumstance, the Court will not be available to hear oral argument on 12/29/2011. Therefore, the pending motion for a preliminary injunction will be taken on submission of the papers and a written decision will follow. IT IS SO ORDERED by Judge Frederick J. Scullin, Jr on 12/28/2011. [this order is a follow up to the voicemail messages/telephone notifications of 12/27/2011] (Scullin, Frederick) (Entered: 12/28/2011)

 

Today Judge Scullin granted two of Mr. Partington’s counsel permission to miss the 29 December hearing “provided that the Plaintiff has proper representation by other counsel on that date.  Otherwise, counsel must attend the proceeding.”  Judge Scullin also reserved judgment on those lawyers’ motoin to withdraw “until after a ruling is issued on the pending motions.”

Here’s a motion that two of Mr. Partington’s counsel filed today seeking to withdraw from the case.  It drops the bombshell that Charlie Gittins (whose name the motion repeatedly misspells) is joining Mr. Partington’s legal team.

I’ll see you at the hearing on the 29th, Charlie.

On Wednesday, the plaintiff in Partington v. Houck filed this motion asking the United States District Court to reinstate a TRO on his suspension from practice in naval courts-martial and DOJ had file.  A TRO had previously been in place, Judge Scullin denied a request to extend it, and it expired on its own terms on 2 December.

Yesterday, Judge Scullin issued this order denying Mr. Partington’s request to revive the TRO.  He ruled that “Plaintiff has not demonstrated that justice requires that the Court reconsider its Order denying his motion for the extension of the temporary restraining order.”