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Earle A. Partington v. James W. Houck

January 10, 2012

EARLE A. PARTINGTON, PLAINTIFF,
v.
JAMES W. HOUCK, VICE ADMIRAL, JAGC, USN; ROBERT A. PORZEINSKI, CAPTAIN, JAGC, USN; ROBERT B. BLAZEWICK, CAPTAIN, JAG, USN; C.N. MORIN, CAPTAIN, JAGC, USN; AND UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES, DEFENDANTS.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court are two motions: Defendants' motion for summary judgment in part and to dismiss in part and Plaintiff's motion for a preliminary injunction.

On May 17, 2010, Defendant James W. Houck, in his official capacity as the Judge Advocate General of the Navy (the "Navy JAG"), indefinitely suspended Plaintiff Earle A. Partington, a civilian attorney, from the practice of law in any and all proceedings involving Navy and Marine Corps personnel ("naval courts"). This decision followed an ethics investigation into Plaintiff's legal representation of AM1 Stewart Toles, II, U.S.N. ("Toles"), during a court-martial proceeding in Pearl Harbor, Hawaii. During the course of this representation, in July 2006, Toles was found guilty of several offenses and sentenced to a bad conduct discharge and five years' confinement. Thereafter, Plaintiff again represented Toles during the automatic appeal of his court-martial conviction; and, on October 30, 2007, the United States Navy-Marine Corps Court of Criminal Appeals (the "NMCCA") affirmed Toles' conviction. In its written opinion (the "Toles opinion"), the NMCCA expressed concern with Plaintiff's "unsavory tactics," finding particularly disconcerting various arguments that Plaintiff had proffered in a March 23, 2007 appellate brief he filed with the NMCCA. See U.S. v. Toles, 2007 WL 3307083 (N.M. Ct. Crim. App. Oct. 30, 2007). Plaintiff's suspension from the practice of law in naval courts led to the instant litigation.

Plaintiff's complaint contains four causes of action: (1) lack of statutory authority against the Navy JAG and Defendant United States Court of Appeals for the Armed Forces (the "CAAF"); (2) Fifth Amendment procedural due process violations against the Navy JAG and the CAAF; (3) violations of the Administrative Procedure Act (the "APA") against the Navy JAG and the CAAF; and (4) a Bivens claim against Defendants James W. Houck ("Defendant Houck"), Robert A. Porzeinski ("Defendant Porzeinski"), Robert B. Blazewick ("Defendant Blazewick"), and C.N. Morin ("Defendant Morin") in their individual capacities.*fn1

II. BACKGROUND

In the Toles opinion, the NMCCA stated that it found several portions of Plaintiff's appellate brief "disingenuous," "clear misrepresentations of the record," or "wholly unsupportable by the record." The NMCCA then forwarded its opinion to the Assistant Judge Advocate General of the Navy on September 22, 2008, nearly one year after it issued the opinion. On October 10, 2008, the NMCCA informed Plaintiff that it had filed a "Professional Responsibility Complaint" against him with the Navy Rules Counsel; as authority, it cited JAG Instruction ("JAGINST") 5803.1C and Navy Judge Advocate General Rules of Professional Conduct ("Navy Rules") 3.1-3.3 and included a copy of the Toles opinion.*fn2 Plaintiff responded to this "Professional Responsibility Complaint" in a letter dated October 26, 2008, in which he challenged the authority of the Navy JAG to discipline him and his failure to specifically set forth his alleged professional responsibility violations.

Defendants ultimately brought fourteen different professional responsibility "specifications" against Plaintiff for allegedly knowingly-making false statements in his appellate brief submitted to the NMCCA on Toles' behalf. See Dkt. No. 12, Administrative Record ("AR"), at 59-61. Toles had been charged with, among other things, violations of the federal "video voyeurism" statute, 18 U.S.C. § 1801, for surreptitiously filming nude or partially nude women around the Navy base. The common alleged falsehood of Plaintiff's statements was his assertion that the military trial court judge had "dismissed" or "acquitted" Toles of the video voyeurism charges lodged against him when, in fact, he had not done so.*fn3

Defendants now move for summary judgment with respect to Plaintiff's first, second, and third causes of action and to dismiss Plaintiff's fourth cause of action for failure to state a claim upon which relief can be granted. Plaintiff is seeking a preliminary injunction with respect to each of his claims, the substance of which is essentially the same as his original complaint.

III. DISCUSSION

A. Defendants' motion for summary judgment in part and to dismiss in part Summary judgment is warranted when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must view all facts, draw all inferences, and resolve all ambiguities in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation omitted).

1. First cause of action: Lack of statutory authority against the Navy JAG and the CAAF Plaintiff contends that the Navy JAG and the CAAF had no authority to discipline him or to issue rules and regulations providing for the discipline of civilian attorneys.

Article 36 of the Uniform Code of Military Justice ("U.C.M.J."), 10 U.S.C. § 836, authorizes the President of the United States, as Commander in Chief of the Armed Forces, to prescribe "[p]retrial, trial, and post-trial" procedural rules for courts-martial proceedings. See 10 U.S.C. § 836(a). Pursuant to that authority, the President has prescribed (and various presidents have amended) the Manual for Courts-Martial ("M.C.M.") by way of Executive Order. See, e.g., Executive Order 10214, 16 Fed. Reg. 1303 (February 10, 1951). Included within the M.C.M. is the Rules for Courts-Martial ("R.C.M."). See Rules for Courts-Martial, Manual for Courts-Martial (2008).

"The delegation of power to prescribe procedural rules governing courts-martial to the President in Article 36 of the UCMJ is a valid designation of power." U.S. v. Daniels, 20 M.J. 648, 649 (C.M.R. 1985). Rule 109 ...


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