[opening brief filed united states court of ......united states v. dozier, 333 u.s.app.d.c. 230,...

[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

USCA Case #12-5038 Document #1387117 Filed: 08/01/2012 of 12

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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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[opening brief filed united states court of ......united states v. dozier, 333 u.s.app.d.c. 230,...

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