USCA Case #12-5038 Document #1387117 Filed: 08/01/2012 Page 1 of 12 [OPENING BRIEF FILED ORAL ARGUMENT NOT YET SCHEDULED] No. 12-5038 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ) EARLE A. PARTINGTON, ) ) Appellant, ) ) v. ) ) JAMES W. HOUCK, Vice Admiral, JAGC, ) USN, et al., ) ) Appellees. ) ) MOTION FOR SUMMARY REVERSAL OR, IN THE ALTERNATIVE, FOR AN EXPEDITED SCHEDULE Appellant Earle A. Partington hereby moves this court to reverse summarily the January 10, 2012, judgment of the Honorable Frederick J. Scullin, Jr., United States District Court for the District of Columbia, granting defendant appellees motion for summary judgment. The grounds for this motion are two-fold: 1) that the district court erred in deciding that the Judge Advocate General of the United States Navy ("NJAG") does not constitute as an agency subject to the Administrative Procedures Act (5 U.S.C. 702), which the NJAG has confessed error on appeal on this point (but not below), and 2) the district court's order directly contravenes the decision of the United States Supreme Court in United (Page 1 of Total)
USCA Case #12-5038 Document #1387117 Filed: 08/01/2012 Page 2 of 12 States v. Alvarez, 132 S.Ct. 2537 (2012), and the controlling precedent of this court to deny a motion for summary judgment where the NJAG never asserted nor found that any alleged falsity made by Partington was material. II. SUMMARY OF THE CASE On November 16, 2010, Appellant and attorney Earle A. Partington ("Partington") filed a complaint against defendants (1) James W. Houck, Vice Admiral, JAGC, USN, (2) Robert A. Porzeinski, Captain, JAGC, USN, (3) Robert B. Blazewick, Captain, JAG, USN, (4) Christopher N. Morin, Captain JAGC, USN, in both their official and personal capacities, and (5) the United States Court of Appeals for the Armed Forces (CAAF) in the United States District Court for the District of Columbia alleging four causes of action: first, lack of statutory authority to discipline civilian attorneys; second, denial of procedural due process in the purported discipline of Partington; third, right of judicial review of discipline under the APA; and fourth, a Bivens action (R 1). On February 25, 2011, the defendants filed a motion for summary judgment as to the first three causes of action and to dismiss the fourth cause of action (R 13-14). On November 18, 2011, Partington filed an ex parte motion for a temporary restraining order (TRO) and a motion for preliminary injunction (R 25). The TRO was allowed on that day. On December 2, 2011, Partington moved for an extension of the TRO (R 30); the district court denied the motion (R 31). (Page 2 of Total)
USCA Case #12-5038 Document #1387117 Filed: 08/01/2012 Page 3 of 12 On January 10, 2012, absent oral argument or any evidentiary hearing, the district court granted defendants' motion for summary judgment and dismissal, and denied Partington's motion for preliminary injunction (R 40). 1 In his order, which was entered on January 10, 2012, the Hon. Frederick J. Scullin, Jr., found, inter alia, that the NJAG does not constitute an agency subject to the APA, and thus ruled the actions of the NJAG were not "agency" actions under the circumstances (R 40, at 9-12) and therefore would not consider whether the actions of NJAG were arbitrary and capricious. Partington noticed his appeal soon thereafter on February 7, 2012. III. SUMMARY REVERSAL IS WARRANTED The standard for summary reversal in this court has long been settled. A party seeking summary reversal must demonstrat[e] both that his remedy is proper and that the merits of his claim so clearly warrant relief as to justify expedited action. United States v. Allen, 133 U.S.App.D.C. 84, 85, 408 F.2d 1287, 1288 (1969); accord Oliver T. Carr Mgt., Inc. v. Nat l Delicatessen, Inc., 397 A.2d 914, 915 (D.C. 1979); In re M.L. DEJ, 310 A.2d 834, 836 (D.C. 1973). The court has elaborated on this standard by stating that the movant must show that the legal 1 The denial of the TRO has meant that Partington has now been reciprocally disciplined by the Supreme Court of Hawaii and the District of Columbia Court of Appeals based solely on the NJAG s action. Disciplinary action is pending before the Supreme Court of Oregon. The defendants have now conceded that Partington is entitled to judicial review, review that should have occurred before any discipline was imposed. (Page 3 of Total)
USCA Case #12-5038 Document #1387117 Filed: 08/01/2012 Page 4 of 12 basis of the decision on review is narrow and clear-cut, and must demonstrate that the facts of the case are uncomplicated and undisputed. Jackson v. District of Columbia Bd. of Elections & Ethics, 770 A.2d 79, 80 (D.C. 2001)(citing Oliver T. Carr Mgt., 397 A.2d at 915). Summary reversal is warranted here because, on the facts conceded by the defendants, at least to the first issue, the decision below is directly contrary to unequivocal controlling authority. See Vietnam Veterans Against the War v. Morton, 164 U.S.App.D.C. 391, 394, 506 F.2d 53, 56 (1974) ("However heavy the burden may be for a litigant to earn summary reversal in the normal case, the district court's failure to defer to and follow [controlling law] clearly warranted that disposition in this case."). The first question in this motion is purely one of law, which this court reviews de novo. United States v. Dozier, 333 U.S.App.D.C. 230, 233, 162 F.3d 120, 123 (1998)(recognizing that court of appeals reviews purely legal questions de novo). Summary reversal is warranted here because, on the facts conceded by the NJAG, the decision below is directly contrary to the unequivocal controlling authority. (See Neal v. Sec. of the Navy and Commandant of the Marine Corps, 639 F.2d 1029, 1036 (3 rd Cir. 1981); Doyle v. England, 193 F. Supp. 2d 202, 203 (D.D.C. 2002). As stated by the appellees in their Motion for Summary Affirmance (DE 1366177) (which this court subsequently denied), "The military is (Page 4 of Total)
USCA Case #12-5038 Document #1387117 Filed: 08/01/2012 Page 5 of 12 an agency under the APA except when it is a courts-martial, military commission or is 'exercised in the field in time of war or in occupied territory'" 5 U.S.C. 701(b) (Attached as Exhibit 1). Further, as the appellees conceded, "[t]he Secretary of the Navy, like any service secretary, is an agency for purposes of the APA" (See Neal, 639 F.2d 1029, 1036 (3 rd Cir. 1981). 5 U.S.C. 702 provides: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency officer or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as defendant in such an action, and judgment or decree may be entered against the United States: Provided, that any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought. (Page 5 of Total)
USCA Case #12-5038 Document #1387117 Filed: 08/01/2012 Page 6 of 12 Thus, the district court should have considered whether the agency action of the NJAG under the circumstances was unlawful and to "set aside agency action, findings, and conclusions" that were "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law" (5 U.S.C. 706(2)(A)), in excess of statutory authority (id. 706(2)(C)), or "without observance of procedures required by law" (id.), 706(2)(D) however, failed to do so and so erred as a matter of law. The standard for summary reversal is satisfied in this case. Further, the district court did not consider whether mandamus would be appropriate against CAAF as it only held the CAAF is not an agency. The second question is whether Partington's argument in Toles' appellate brief is protected speech under the First Amendment or can be subject to allegations of falsity where the defendants failed either to allege or prove that any supposed falsity was either made at all, 2 let alone for the purpose of material gain. United States v. Alvarez, 132 S.Ct. 2537, 2547-48 (2012). In Alvarez, the defendant was found to have violated the Stolen Valor Act ( Act ) by falsely claiming he had received the Congressional Medal of Honor. After granting certiorari, the Supreme Court held that the Act, which makes it a crime to falsely claim receipt of military decorations or medals and provides an enhanced penalty if 2 If this court would require the defendants to answer paragraphs 59-89 of the complaint (R1, 14-18), this issue would be immediately resolved as the defendants cannot in good faith do anything other than admit the truth of these allegations. (Page 6 of Total)
USCA Case #12-5038 Document #1387117 Filed: 08/01/2012 Page 7 of 12 the Congressional Medal of Honor is involved, 3 constituted a content-based restriction on free speech, and as such in violation of the First Amendment. In essence, the Supreme Court found that although the Act prohibits only knowing and intentional falsehoods about readily verifiable facts within the personal knowledge of the speaker, it otherwise ranges broadly, and that breadth means that it creates a significant risk of First Amendment harm. Further, in its decision, which was provided by Justice Kennedy, the Supreme Court observed the following: Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court's cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom. Id. 132 S.Ct. at 2548 (2012). In other words, in the absence of a showing that an alleged falsity is material under the circumstances, a statement is protected speech under the First Amendment. As in Alvarez, in this case, the NJAG neither alleged nor proved that any of the purportedly false statements made by Partington in appellate defense counsel s appellate Brief filed on Toles behalf before the United 3 18 U.S.C. 704(b), (c). (Page 7 of Total)
USCA Case #12-5038 Document #1387117 Filed: 08/01/2012 Page 8 of 12 States Navy-Marine Corps Court of Criminal Appeals were material in any way under the circumstances. By way of background, on or about October 30, 2009, defendant Blazewick (the hearing officer in the Navy disciplinary proceeding) wrote to Partington in response to Partington s prior requests asking specifically how he was alleged to have violated Rules of Professional Conduct 3.3 and 3.1. In defendant Blazewick s response, Partington was provided with a list of violations under Rule 3.3 which he was suspected to have committed, set forth in thirteen different specifications (R 1, Compl. 58, Administrative Record ( A.R. ) (Attached as Exhibit 2). In review of the October 30, 2009 charge sheet provided by defendant Blazewick and included in the record on appeal, it is clear that none of the false statements were alleged to be material by the NJAG to any issue in the appeal (R 1; Compl. 62; A.R. 217-220). None of these purportedly false statements were even materially false or misleading (Compl. 61, 62; A.R. 217-220). Moreover, twelve out of thirteen 4 of the alleged false statements were intended as legal argument and not as statements of fact (R. 1; Compl. 64, 66, 68, 70, 72, 74, 76, 79, 81, 83, 85, 87, 89; A.R. 217-220. This position is made clear 4 As to the thirteenth specification, the NJAG alleged that the following statement, taken directly from Toles appellate Brief, was false: Toles had moved for neither an acquittal nor a dismissal of these specifications. In response, the abovereferenced statement was taken out of its temporal context. (See footnotes 8 and 9 of Opening Brief; R1). All allegations related to the argument portion of the Opening Brief. (Page 8 of Total)
USCA Case #12-5038 Document #1387117 Filed: 08/01/2012 Page 9 of 12 from a review of the appellate Brief filed on behalf of Toles (AR 157-175). In the Brief, Partington argued that when the military judge set aside Toles pleas of guilty and entered findings of not guilty as to the video voyeurism charge and specifications and then subsequently found him guilty of the included offenses of disorderly conduct, the military judge acquitted Toles of the video voyeurism charge and specifications. Partington further argued that the term acquitted was in law a dismissal because it was not a resolution, correct or not, of some or all of the factual elements of the offense charged, citing Supreme Court directly on point as authority 5 (AR 164). And because no facts had been resolved, Partington argued: the military judge s acquittal was not an acquittal for double jeopardy purposes but rather, the military judge dismissed those specifications for failure to allege an offense, a legal issue. (Id.) Thus the issue presented in Toles appeal concerned the effect of that dismissal (Id.). Viewed in this context, it is clear that Partington did not misrepresent the facts, but instead provided a valid legal argument as to the meaning of the military judge's findings entered on the record (AR 998-1002)(Attached as Exhibit 3), and as such was protected speech. In addition, on February 19, 2010, defendant Blazewick submitted his findings to the Rules Counsel concerning his ethics investigation of Partington in a 32-page report (A.R. 79 110) (Attached as Exhibit 4). Similar to his letter 5 Sanabria v. United States, 437 U.S. 54, 71 (1978); Lee v. United States, 432 U.S. 23, 30 n.8 (1977). (Page 9 of Total)
USCA Case #12-5038 Document #1387117 Filed: 08/01/2012 Page 10 of 12 written to Partington on October 30, 2009, it is clear that NJAG made no finding that Partington s purportedly false statements were material or used to try to gain any material advantage in Toles criminal appeal. See Alvarez at 2548. Consequently, in light of the decision in Alvarez, Judge Scullin s judgment granting the defendants motion for summary judgment was an error of law in that it drastically undermined the substantial jurisprudential and societal interest in protected speech under the First Amendment. That judgment should be summarily reversed. CONCLUSION For the foregoing reasons, Partington respectfully requests that this court summarily reverse the district court's order of January 10, 2012 granting the defendant's motion for summary judgment and immediately issue the mandate on remand so that the district court may address the other important issues raised. In the alternative, Partington requests that this court schedule this appeal for expedited briefing, argument and decision, with the answering brief due 30 days from this court s order resolving this motion. In furtherance of this request, on July 5, 2012, the clerk filed an order setting the due date for the opening brief on August 17, 2012, and for the answering brief on September 17, 2012, overlooking the fact that the opening brief had been filed months before and thus there was no need to set a date for filing the opening brief. Finally, Partington seeks attorney (Page 10 of Total)
USCA Case #12-5038 Document #1387117 Filed: 08/01/2012 Page 11 of 12 fees and costs on appeal in that the defendants had no good faith basis to claim in the district court that Partington had no right to judicial review under the APA and then confess error as to this issue on appeal in this court. (See Exhibit 1). DATED: August 1, 2012 Respectfully submitted, EARLE A. PARTINGTON, Plaintiff-Appellant By his Attorney, /s/ JEFFREY A. DENNER Jeffrey A. Denner D.C. Cir. Bar. No. 54254 Denner Pellegrino, LLP 4 Longfellow Place, Suite 3501 Boston, MA 02131 Telephone: (617) 227-2800 Facsimile: (617) 973-1562 Email: jdenner@dennerpellegrino.com and Charles W. Gittins DC Bar. No. 439710 P.O. Box 144 Middletown, VA 22645 Telephone: (540) 662-9036 Facsimile: (540) 662-9296 Email: cgittins@aol.com (Page 11 of Total)
USCA Case #12-5038 Document #1387117 Filed: 08/01/2012 Page 12 of 12 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 1 st day of August, 2012, the foregoing Appellant s Motion for Summary Reversal was served via this Court s Electronic Case Filing System. /s/ JEFFREY A. DENNER Jeffrey A. Denner (Page 12 of Total)
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