[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
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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).
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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.
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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 (3rd
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
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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 (3rd
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.
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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.
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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).
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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 thirteen4 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 above-
referenced 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.
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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 authority5 (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).
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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
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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: [email protected]
and
Charles W. Gittins
DC Bar . No. 439710
P.O. Box 144
Middletown, VA 22645
Telephone: (540) 662-9036
Facsimile: (540) 662-9296
Email: [email protected]
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 1st 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
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