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Spelman v. McHugh

United States District Court, D. Columbia.

August 22, 2014

STEPHEN E. SPELMAN, Plaintiff,
v.
JOHN M. McHUGH, as Secretary of the Army, Defendant

Decided August 21, 2014

Page 41

STEPHEN E. SPELMAN, Plaintiff, Pro se, East Longmeadow, MA.

For JOHN M. MCHUGH, Secretary of the Army, Defendant: John J. Gowel, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF COL, Civil Division, Washington, DC.

Page 42

MEMORANDUM OPINION [Dkt. #23]

RICHARD J. LEON, United States District Judge.

Plaintiff Stephen E. Spelman (" Spelman" or " plaintiff" ) filed this action against Dana K. Chipman--in his official capacity as The Judge Advocate General of the United States Army (" TJAG" )--on July 25, 2013 alleging violations of the Administrative Procedure Act (" APA" ), 5 U.S.C. § 701 et seq. See Complaint (" Compl." ) [Dkt. #1]. On August 20, 2013, plaintiff amended his complaint,[1] substituting John M. McHugh--in his official capacity as the Secretary of the Army (" Secretary" or " defendant" )--as the defendant in this case, and adding a claim for violation of plaintiff's constitutional right to due process. See Amended Complaint (" Am. Compl." ) ¶ ¶ 16-17, 131-36 [Dkt. #15]. Now before the Court is defendant's Motion to Dismiss, in part, and for Summary Judgment. See Mot. Summ. J. [Dkt. #23]. Upon consideration of the parties' pleadings, relevant law, and the entire record in this case, the Court GRANTS defendant's motion for summary judgment.

BACKGROUND

Plaintiff is an attorney licensed to practice in Massachusetts, Connecticut, and New York. See Am. Compl. ¶ 6. He currently

Page 43

resides and practices law in Massachusetts. See Am. Compl. ¶ 7. Plaintiff is also a member of the Army Retired Reserve. See Administrative Record (" AR" ) [Dkt. #33] at 55. Plaintiff enlisted in the Regular Army as a Private in 1982. See Am. Compl. ¶ 8. He attended law school from 1988 to 1991, during which time he served in the U.S. Army Reserve. See Am. Compl. ¶ ¶ 10-13. Plaintiff became a member of the Judge Advocate General's Corps (JAGC)[2] in 2000. See Am. Compl. ¶ 15.

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. See at AR 7-9, 48-50. He was sentenced to sixty days confinement, ordered to forfeit $4,000 of pay per month for five months, and reprimanded for his conduct. See AR at 48-50. Following execution of his sentence, plaintiff elected reassignment to the Retired Reserve rather than separation for misconduct under Army Regulation 135-175. See AR at 55, 95-96. Plaintiff entered the Retired Reserve on February 1, 2013. See Am. Compl. ¶ ¶ 31-32. 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. See Am. Compl. ¶ 45.

On February 12, 2013, the Professional Responsibility Branch (" PRB" ) of the Office of the Judge Advocate General notified plaintiff that it had reviewed the allegations of professional misconduct that were the basis of plaintiff's court-martial conviction, and found that there was credible evidence to conclude that he had violated the Army's Rules of Professional Conduct for Lawyers. See AR at 57-59. Plaintiff was given an opportunity to respond to the allegations and was informed that TJAG would make the ultimate decision regarding disciplinary action. See AR at 57-59. In letters dated February 19 and March 5, 2013, plaintiff disputed the PRB's allegations of professional misconduct and contested TJAG's authority to discipline him further. See AR at 63-66.

On June 13, 2013, TJAG notified plaintiff of his intent to impose the following disciplinary actions against plaintiff for violating Rule 8.4 of the Army Rules of Professional Conduct for Lawyers: (1) withdrawal of plaintiff's certification under Article 27(b) of the Uniform Code of Military Justice (" UCMJ" ); (2) indefinite suspension from practice before Army Courts (3) indefinite suspension from practice under TJAG; and (4) notification of plaintiff's state bars of the withdrawal and suspensions. See AR at 148-49. On July 25, 2013, plaintiff submitted a rebuttal, again arguing that TJAG lacked statutory and regulatory authority to take such disciplinary action against him given that he was no longer in the active Army. See AR at 158-69. That same day, plaintiff filed his complaint and motions for a TRO and preliminary injunction in this Court. See Motion for Temporary Restraining Order [Dkt. #2]; Motion for Preliminary Injunction [Dkt. #3].

On July 26, 2013, this Court declined to issue a TRO and set a date to hear argument on plaintiff's Motion for Preliminary

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Injunction.[3] On the same date, government counsel informed plaintiff that TJAG had already decided to take the disciplinary action outlined in the June 13, 2013 letter. See AR at 170-71. On August 5, 2013, however, TJAG temporarily suspended the disciplinary action and notification of plaintiff's bar licensing authorities pending this Court's ruling on plaintiff's Motion for Preliminary Injunction. See Def.'s Notice [Dkt. #6]. On November 2, 2013, this Court denied plaintiff's Motion for Preliminary Injunction, finding that plaintiff failed to establish that irreparable injury would likely occur from a denial ...


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