Earle Partington v. James Houck
406 U.S. App. D.C. 257
| D.C. Cir. | 2013Background
- Earle Partington, a civilian attorney and retired Army JAG, represented Stewart Toles at a Navy general court-martial; Partington raised a late, well‑taken jurisdictional motion that led the military judge to set aside pleas and a pretrial agreement, and ultimately to a plea to lesser offenses.
- On appeal Partington’s brief to the Navy‑Marine Corps Court of Criminal Appeals (NMCCA) made characterizations of the trial judge’s statements and rulings that the NMCCA found misleading and unsupported by the record; the NMCCA forwarded its opinion as a professional responsibility complaint.
- The Navy Rules Counsel opened an inquiry, then an ethics investigation under JAGINST 5803.1C alleging violations of Rules 3.1 and 3.3 (meritorious claims and candor toward the tribunal); Partington was notified, given multiple opportunities to respond and to elect a hearing, but he declined to appear.
- After a preliminary inquiry and ethics investigation found by a preponderance (and JAG guidance requiring clear and convincing for final action), the Judge Advocate General (JAG) concluded Partington knowingly misrepresented the record and indefinitely suspended him from practice before naval courts; other jurisdictions were notified.
- Partington sued in D.C. district court asserting (1) JAG lacked statutory authority to discipline civilian counsel, (2) deprivation of Fifth Amendment due process, (3) Bivens constitutional tort, and (4) APA review; district court entered judgment for defendants (in part on APA standing), and Partington appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to discipline civilian counsel before courts-martial | R.C.M. 109(a) does not reach civilian defense attorneys; President cannot delegate disciplinary authority over civilians sub silentio | R.C.M. 109(a) and the President’s Article 36 rulemaking authorize JAG to supervise and discipline "other lawyers" who practice in UCMJ proceedings; JAGINST validly defines covered attorneys | JAG had authority: R.C.M. 109(a) covers civilian counsel and JAGINST 5803.1C is a lawful exercise of delegated authority |
| Fifth Amendment due process | Partington lacked adequate notice and meaningful hearing; deprivation of liberty/property in ability to practice | JAG provided multiple notices, documents, investigation, and opportunity to be heard (including electing a hearing) which Partington waived by nonappearance | No due process violation: notice and opportunity to be heard were provided; claim fails |
| Bivens constitutional tort | JAG actors committed constitutional violations actionable under Bivens | The underlying due process claim fails, so no Bivens remedy; proceedings provided constitutionally adequate process | Bivens claim dismissed as derivative of rejected due process claim |
| APA review and merits | JAG action is agency action subject to APA and was arbitrary/capricious and lacked clear standards/record support | Either JAG not an APA "agency," or if reviewable the decision followed JAGINST standards and is supported by substantial evidence | Court held JAG action is reviewable under APA but, on the merits, the JAG’s decision was not arbitrary or capricious and is supported by the record; APA claim fails |
Key Cases Cited
- Mathews v. Eldridge, 424 U.S. 319 (1976) (due process requires notice and an opportunity to be heard tailored by balancing tests)
- In re Ruffalo, 390 U.S. 544 (1968) (attorney discipline requires notice of charges and opportunity to defend)
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (created implied damages remedy for certain constitutional violations)
- Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29 (1983) (APA review requires reasoned decisionmaking; arbitrary or capricious standard)
- Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962) (agency must show rational connection between facts and action)
- Willner v. Committee on Character & Fitness, 373 U.S. 96 (1963) (attorney license is a protectable interest implicating due process)
- McKinney v. White, 291 F.3d 851 (D.C. Cir. 2002) (limits on APA review where action is part of the military courts-martial review scheme)
- Piersall v. Winter, 435 F.3d 319 (D.C. Cir. 2006) (civilian administrative boards distinct from military courts may be APA‑reviewable)