Spelman v. McHugh ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHEN E. SPELMAN, )
Plaintiff, §
v. § Civil Case No. 13-01134 (RJL)
JOHN M. McHUGH, §
as Secrelary of the Army, ) F 1 L E D
Def``endant. § AUG 2 2 2014
g Cierk, ``u.S. District & Bankruptcy
MEM()RAN])UM QPINI()N Courts for the District of Columbia
(Augustz_(_, 2014) [Dkt. #23]
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 ("Colnpl.") [Dkt. #l].
On August 20, 2013, plaintiff amended his complaint,l 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. Cornpl.") W 16-l7, 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,
l Plaintiff” s Amended Complaint was filed as a matter of right, as it was filed within 21 days of
l
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. 1l 6. He currently resides and practices law in
Massachusetts. See Am. Compl. 11 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. 11 8. He attended law school from
1988 to l99l, during which time he served in the U.S. Army Reserve. See Am. Compl.
jHl l0~l3. Plaintiff became a member of the judge Advocate General’s Corps (JAGC)Z
in 2000. See Am. Compl. il l5.
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-attomey 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
TJAG filing his Motion to Dismiss under Rule l2. See Fed. R. Civ. P. lS(a)(I)(B).
2 The JAGC is considered a "special branch" of the Army. See l0 U.S.C. § 3064(a)(2). In
addition to TJAG, the JAGC consists of "commissioned officers of the Regular Army appointed
therein; and . . . other members of the Army assigned thereto by the Secretary of the Army." 10
U.S.C. § 3072. Officer members ofthe JAGC are known as Judge Advocates. See 10 U.S.C.
§ 301(13)(A).
misconduct under Army Regulation 135-175. See AR at 55, 95-96. Plaintiff entered the
Retired Reserve on February l, 2013. See Am. Compl. ‘W 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. jl 45.
()n February l2, 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 l3, 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: (l) withdrawal of plaintiffs 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 plaintiffs state bars of the withdrawal and suspensions. See AR at
b.)
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 plaintiffs Motion for Preliminary Injunction? 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 170-7l. On August 5,
2013, however, TjAG temporarily suspended the disciplinary action and notification of
plaintiffs bar licensing authorities pending this Court’s ruling on plaintiffs Motion for
Preliminary lnjunction. See Def.’s Notice [Dkt. #6]. On November 2, 2013, this Court
denied plaintiffs Motion for Preliminary lnjunction, finding that plaintiff failed to
establish that irreparable injury would likely occur from a denial of his motion. See
Memorandum Opinion at 6 [Dkt. #18]. On january 8, 2014, defendant filed the instant
Motion to Dismiss, in part, and for Summary judgment.
STANDARD OF REVIEW
Defendant moves for summary judgment pursuant to Federal Rule of Civil
3 Oral argument was heard on plaintiff s Motion for Preliminary injunction on August 20, 2013.
4
Procedure 56. Summary judgment is normally proper where the pleadings, stipulations,
affidavits, and admissions in a case show that there is no genuine issue as to any material
fact. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (l986). This
standard, however, does not apply in cases where a district court is reviewing a final
agency action under the APA "because of the limited role of a court in reviewing the
administrative record." Sz``erra Club v. Maz``nella, 459 F. Supp. 2d 76, 89 (D.D.C. 2006)
(citing Nat’l Wilderness Inst. v. U.S. Army Corps ofEng’rs, Civ. No. 0l0273, 2005 WL
691775, at *7 (D.D.C. 2005)). A district court’s review of agency action involves
questions of law that may be resolved "based on the full administrative record that was
before the Secretary at the time he made his decision." Citz``zens to Preserve Overton
Park, lnc. v. Volpe, 401 U.S. 402, 420 (1971) (abrogated on other grounds by Calzfano v.
Sarzders, 430 U.S. 99 (1977)); see also Atl. Sea Islana' Grp. LLC v. Connaughton, 592 F.
Supp. 2d l, l2 (D.D.C. 2008); McDougal v. Widnall, 20 F. Supp. 2d 78, 82 (D.D.C.
1998) ("This Court must review the decision of the [agency] through an examination of
the administrative record of the proceedings before the [agency], rather than a de novo
review of Plaintiffs claims.").
Reviewing courts must set aside agency action that is "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see
also Tourus Records, Inc. v. DEA, 259 F.3d 731, 736 (D.C. Cir. 200l). When a district
court applies the arbitrary and capricious standard, it "does not resolve factual issues, but
instead acts as an appellate court resolving a legal question." Atl. Sea Is/ana’ Grp. LLC,
592 F. Supp. 2d at 12-13 (citing James Maa’z``son Lta’. v. Lua’wz``g, 82 F.3d 1085, 1096 (D.C.
Cir. 1996)). The court must, however, determine whether the agency action was based
upon consideration of relevant factors and whether there was a clear error of judgment or
a failure to follow procedures required by law. See Marsh v. Oregon Nalural Res.
Councz``l, 490 U.S. 360, 378 (1989); Escobea'o v. Green, 602 F. Supp. 2d 244, 248 (D.D.C.
2009). The Supreme Court has made clear that "the scope of review under the ‘arbitrary
and capricious’ standard is narrow and a court is not to substitute its judgment for that of
an agency." Motor Vehz``cle Mfrs. Ass ’n of U.S. v. Slate Farm Mut. Auz‘o. Ins. Co., 463
U.S. 29, 43 (1983); see also MD Pharmaceulz``cal, Inc. v. DEA, 133 F.3d 8, 16 (D.C. Cir.
1998) ("We will not disturb the decision of an agency that has examine[d] the relevant
data and articulate[d] a satisfactory explanation for its action including a rational
connection between the facts found and the choice made.") (internal quotation marks and
citation omitted).
When the agency action at issue involves "the construction of an administrative
regulation rather than a statute . . . deference is even more clearly in order." Ua’all v.
Tallman, 380 U.S. l, 16 (1965). "[T]he agency’s interpretation must be given
controlling weight unless it is plainly erroneous or inconsistent with the regulation."
Thomas Jejj’erson Um``v. v. Shalala, 512 U.S. 504, 512 (l994) (internal quotation marks
and citation omitted); see also Auer v. Robbz``ns, 519 U.S. 452, 461 (1997); Gen. Carbon
Co. v. OSHRC, 860 F.2d 479, 483 (D.C. Cir. 1988). In other words, courts "must defer
to the Secretary’s interpretation unless an alternative reading is compelled by the
regulation’s plain language or by other indications of the Secretary’s intent at the time of
the regulation’s promulgation." Thomas Je/j’erson Unz``v., 512 U.S. at 512 (internal
quotation marks and citation omitted); see also Rollins Envtl. Servs. (NJ) Inc. v. EPA, 937
F.2d 649, 652 (D.C. Cir. 1991). Not surprisingly, the more complex a regulatory
program is, the greater the deference owed. See Thomas Jefferson Unz'v., 512 U.S. at
512.
ANALYSIS
The discipline administered by TJAG in this case consists of: (l) withdrawal of
plaintiffs certification under Article 27(b) ofthe Uniform Code of Military justice; (2)
indefinite suspension from practice before Army courts-martial and the U.S. Army Court
of Criminal Appeals ("ACCA"); (3) indefinite suspension from performing judge
Advocate duties or practicing law in any capacity in any area of practice under the
cognizance of TJAG; and (4) notification of plaintiffs state bar and other licensing
authorities of the disciplinary action. See AR at 148-49. Plaintiff challenges the above
discipline on four grounds. Plaintiff argues that TJAG lacks the statutory and regulatory
authority to impose discipline on him as a member of the Retired Reserve. See
Plaintiff s Opposition to Defendant’s Motion to Dismiss and for Summary judgment
("Pl.’s Opp’n") at 8, 11 [Dkt. #26]; see also Am. Compl. at 20-21 (Counts 1 and ll).
Plaintiff further argues that TjAG failed to comply with Army regulations while imposing
the discipline. See Pl.’s Opp’n at 13-15; see also Am. Compl. at 23 (CountII1). Finally,
plaintiff argues that TjAG’s imposition of discipline on him was a violation of plaintiffs
constitutional right to due process. See Pl.’s Opp’n at 14-15; see also Am. Compl. at 23
(Count IV). Each of these arguments will be discussed in turn.
I. Statutory Authority
The judge Advocate General is an Army officer-and attorney-who is appointed
by the President at the rank of Lieutenant General for a term of four years. See 10 U.S.C.
§ 3037(a). TjAG is responsible for-in addition to other responsibilities prescribed by
law_serving as the legal adviser to the Secretary of the Army and all officers and
agencies of the Department of the Army, and for directing the members of the jAGC in
the performance of their duties. See 10 U.S.C. § 3037(0). The Army is made up of four
components: "the Regular Army, the Army National Guard of the United States, the
Army National Guard while in the service of the United States and the Army Reserve."
10 U.S.C. § 3062(0)(1). l\/loreover, the Army Reserve_as a subset of the Army_is
comprised of three components: "a Ready Reserve, a Standby Reserve, and a Retired
Reserve." 10 U.S.C. § 10141(a). Plaintiffis a member ofthe Retired Reserve/1 See
4 Members of the Retired Reserve "may be ordered to active duty by the Secretary of the [Army]
at any time," 10 U.S.C. § 688(a), to "such duties as the Secretary considers necessary in the
interests of national defense," 10 U.S.C. § 688(c), including "to augment support and training
facilities, to relieve both Active Component or Ready Reserve members for other duties, or to
accomplish operational missions as needed," Appendix to Defendant’s Motion to Dismiss or F or
Summary judgment ("Def. App.") at 52-53 [Dkt. #23-3] (()ffice of the Assistant Sec’y. of Def.
8
Am. Co1np1. 11 29. As judge Advocates serving in any of the three Army Reserve
components are still part of the Army, they remain subject to TjAG’s authority to "direct
[them] in the performance of their duties." 10 U.S.C. § 3037.
Following the imposition of his court-martial sentence, plaintiff elected to enter
the Retired Reserve in lieu of separating from the Army. See Am. Compl. ‘lj 29. This
decision, of course, was totally voluntary. See Def. App. at 49 (U.S. Dep’t of Defense
lnstr. 1215.06, E5.1.3.4., Uniform Reserve, Training, and Retirement Categories (Dec.
24, 2008)) ("Former members having completed 20 satisfactory years of service
creditable for non-regular retirement, but electing to be discharged from the [Reserve
Components], are not a part of the Retired Reserve and have no military status.")
(emphasis added). Having done so, it strains credulity for plaintiff to now argue that he
is no longer subject to the authority of TjAG_the officer tasked by Congress with
directing judge Advocates in the performance of their duties. See 10 U.S.C. § 3037.
Plaintiff s decision to enter the Retired Reserve-rather than separate from the
Army_made him available for activation as a judge Advocate al any tz``me, see 10 U.S.C.
§ 688, and thereby subject to TjAG’s authority under 10 U.S.C. § 3037. Retired Reserve
"retain their status as Reserves, and are otherwise qualified" for duty. 10 U.S.C.
§ 10154(2). Any ruling stating that TjAG lacks the authority to ensure the qualifications
of those in the Retired Reserve_who may be activated to serve as judge
for Reserve Affairs, Reserve Components of the Armed Forces, at 13-14 (Sept. 2005)).
9
Advocates~would do major harm to the maintenance of an effective Retired Reserve and
would be contrary to the statutory language of 10 U.S.C. § 10154. See id.
TjAG’s statutory authority over plaintiff~and judge Advocates generally-is
further derived from the UCMj. See 10 U.S.C. § 801 et seq. Pursuant to the UCMJ,
TjAG is responsible for certifying judge Advocates for practice before general
courts-martial, see 10 U.S.C. § 827(b) ("Trial counsel or defense counsel detailed for a
general court-martial . . . must be certified as competent to perform such duties by the
judge Advocate General.”), and for practice before the ACCA, see 10 U.S.C. § 870(a)
("The judge Advocate General shall detail in his office one or more commissioned
officers as appellate Government counsel, and one or more commissioned officers as
appellate defense counsel, who are qualified under section 827(b)(1) of this title.").
Moreover, in the l\/Ianual for Courts-Martial ("MCM"), TjAG is entrusted with
responsibility for the "professional supervision and discipline of military trial and
appellate military judges, judge advocates, and other lawyers who practice in proceedings
governed by the code and this lvlanual." Def. App. at 27 (Rule for Court-Martial
("R.C.M.") 109)).5 That plaintiff is not currently serving as an active duty judge
5 R.C.M. l09(a) further states that:
Rules of professional conduct promulgated pursuant to this rule may include
sanctions for violations of such rules. Sanctions may include but are not limited
to indefinite suspension from practice in courts-martial and in the Courts of
Criminal Appeals. Such suspensions may only be imposed by the judge
Advocate General of the armed service of such courts. Prior to imposing any
discipline under this rule, the subject of the proposed action must be provided
notice and an opportunity to be heard.
10
Advocate is no consequence. As plaintiff is subject to activation at any time, it remains
the duty of TjAG to ensure his fitness for duty should he be recalled. See 10 U.S.C.
§ 827(b); 10 U.S.C. § 870(a); 10 U.S.C. § 10154.
II. Regulatory Authority
Effective june 1, 1992, TjAG promulgated Army Regulation 27-26; Rules of
Professional Conduct for Lawyers. See Def. App. at 15-22 (U.S. Dep’t of Army, Reg.
27-26, Rules of Professional Conduct for Lawyers (May l, 1992) ("Army Reg. 27-26" or
"Rules")). Army Reg, 27-26 "provides comprehensive rules governing the ethical
conduct of Army lawyers, military and civilian, and, pursuant to RCl\/l 109, Manual for
Courts-l\/lartial, of non-government lawyers appearing before Army tribunals." See z``d. at
17 (Army Reg. 27-26, Rule 1). By its own terms, Army Reg. 27-26 applies to all "judge
Advocates in the Active Army, the Army National Guard, and the U.S. Army Reserve."
Id. at 19 (Army Reg. 27-26, Rule 8.5(b)) (emphasis added). Plaintiff s focus on the use
of the term "Army Lawyer" in Rule 8.5-as a basis for excusing him from compliance
with the Rules-is misplaced, as it fails to account for the broader jurisdictional statement
contained in Rule 8.5(b). See z``d. (stating rules apply to all Army judge Advocates).
As the Retired Reserve is a component of the U.S. Army Reserves, plaintiff--as a
judge Advocate in the Retired Reservef"_is clearly subject to the Rules of Professional
Id.
6 Plaintiff maintained his status as a judge Advocate when he transitioned to the Retired
Reserve. See AR at 55, 96-97.
11
Conduct for Lawyers. See 10 U.S.C. § 10141. Moreover, because the Rules
"presuppose that disciplinary assessment of a lawyer’s conduct will be made on the basis
of the facts and circumstances as they existed at the time of the conduct in question,"
plaintiffs move to the Retired Reserve does nothing to change the fact that he was
unquestionably subject to the Rules at the time of his misconduct.7 See Def. App. at 18
(Army Reg. 27-26, Rule 7(f)).
III. Army Regulations
Plaintiff argues that TjAG failed to comply with Army regulations when he
imposed discipline on plaintiff without an independent review of the case by a Senior
Supervisory judge Advocate ("SSjA"). Unfortunately for plaintiff, this argument also
lacks merit. How so‘?
Army Regulation 27-1 "establishes procedures for processing alleged or suspected
violations of the Army Rules of Professional Conduct for Lawyers . . . or other applicable
ethical standards by [judge Advocates], civilian attorneys subject to this regulation, or
other attorneys who are subject to the disciplinary authority of TjAG pursuant to RCM
109." See Def. App. at 10 (U.S. Dep’t of Army, Reg. 27-1, judge Advocate Legal
Services (September 13, 201l) ("Army Reg. 27-1"), 11 7-1(a)).3 The Professional
7 Plaintiff admitted to misconduct when he pleaded guilty in his general court-martial on
September 6, 2012. See Am. Compl. 11 26; AR at 7-9, 48-50. Plaintiffis not challenging
TjAG’s judgment or discretion for imposing discipline on plaintiff, only his authority to do so,
see Am. Compl. 11 113, and therefore there is no need for an in-depth discussion of how
plaintiffs misconduct violated the Arrny’s Rules of Professional Conduct for Lawyers.
8 The Office of TjAG is the proponent of the regulation and therefore it "has the authority to
12
Responsibility Branch ("PRB") is responsible for overseeing these procedures, including
making determinations regarding the necessity of preliminary screening inquiries
("PS1").9 See z'd. at 10-11 (Army Reg. 27-1, 1111 7-3(b)(l), (4)). Although PRB has the
authority to "assume the case and take further action as deemed appropriate under the
circumstances," SSjA may be tasked with the limited role of determining whether a PSI is
complete. See z``d. at 12 (Army Reg. 27-1, 11 7-5(b)).
If the PRB elects to take action on the PSI, he will forward it to The Assistant
judge Advocate General ("TAjAG"),lll who may then refer the case to TJAG for any
further action.ll See z``d. at 12 (Army Reg. 27-l, 1111 7-6(a), (b)). Upon receiving the case,
TjAG must consider whether there has been a "violation[] of professional ethical
standards," and is not bound in that decision by "the findings or recommendations of the
approve exceptions or waivers to [the] regulation that are consistent with controlling law and
regulations." Def. App. at 9 (Army Reg. 27-1, at p. i).
9 A PSI is an initial informal investigation used for "determining whether the questioned conduct
occurred and, if it did, whether it constituted a violation of the Army Rules of Professional
Conduct for Lawyers.” Def. App. at ll (Army Reg. 27-l, 1111 7-4(a), (b)). PSls may be
unnecessary when the alleged violation has been "thoroughly investigated under another
procedure," such as a court-martial. Id at 10-1 1 (Army Reg. 27-1, 1111 7-3(b)(1), (4)). The
necessity of a PSI in any given situation is within the sole discretion of the PRB. Id, When the
PRB decides that a PSI is not required, it will usually forward the misconduct report to a SSjA
for further action. See id. at 12 (Army Reg. 27-1, 11 7-5(b)(4)). The SSjA may then either (l)
close the case, if the report concludes that no misconduct has occurred; (2) determine that
counseling is appropriate, if only a minor or technical violation occurred; or (3) refer the case to
TjAG, if more than a minor or technical violation occurred. See id. at 12 (Army Reg. 27-1,
11 7-5(a)).
lll If the TAJAG is unavailable, the PRB may forward the PSI to an Assistant judge Advocate
General ("AJAG"). See Def. App. at 12 (Army Reg. 27-1, 11 7-6(b)).
ll 'l``he subject of a PSI is notified both at the time the PRB decides to refer the case to the DjAG
and when the case is referred to TJAG for further action. See Def. App. at 12 (Army Reg. 27-1,
11 7~6(3), (C))-
13
PSI officer, the senior supervisory jA, a subordinate within [the Office of TJAG] or the
PRC." See z``d. at 13 (Army Reg. 27-1, 11 7-8(a)(2)). Nevertheless, "[b]efore reporting an
attorney’s conduct to his or her licensing authority . . . TjAG will advise the subject
attorney of the contemplated action and give him or her not more than ten days to show
cause why TjAG should not take such action." 1d.
After plaintiff pleaded guilty to his general court-martial, PRB Attorney Advisor
Kathryn Stone informed him by letter dated February 12, 2013 that the "thoroughly
documented General Court-Martial case satisfies the requirements of a [PS1], the purpose
of which is to assist in determining whether the questioned conduct occurred and, if it did,
whether it constituted a violation of the Army Rules of Professional Conduct for
Lawyers." AR at 57. Plaintiff was also informed that PRB had "assumed" the casel? as
there was "credible evidence" that he violated Rule 8.4(b) and (c) of the Arrny Rules of
Professional Conduct for Lawyers. See t``d. at 57-58. ()n March 26, 2013, PRB provided
its recommendation on plaintiff s discipline to TJAG. See AR at 89. TjAG-after
reviewing the court-martial file, PRB’s recommendations, and plaintiff s rebuttal
materials_found that plaintiff had indeed violated Rules 8.4(b) and (c). See AR at
145-49.
Plaintiff now seeks to convince this Court that the Ar1ny failed to follow its own
regulations in his disciplinary proceedings, simply because there was no independent
ll Plaintiffs general court-martial case file-which "satisfie[d] the requirements of a
14
review of his court-martial file-which was being used in lieu of a PSI-by an SSjA
prior to PRB assuming the case. See A1n. Compl. 1111 103-107. The primary role of an
SSJA in the attorney disciplinary process consists of reviewing the completeness of PSls
and coordinating with PRB if further action is required. See Def. App. at 12 (Army Reg.
27-1, 11 7-5). However, because plaintiff s misconduct was extensively investigatedl3
during his general court-martial_and documented in the court-martial file_there was no
need to create a separate PS1, and therefore no need for an SSjA-independent of
PRB_to certify the completeness of the report. See AR at 57; see also Def. App. at 12
(Army Reg. 27-1, 11 7-5``).
The PRB’s authority to assume misconduct cases from SSjA is clear, see Def.
App. at 12 (Army Reg. 27-1, 11 7-5(b)), and in cases where there is "more than a minor or
technical violation"~as is the case here-the "[SSjA] will refer the PSI report" to the
PRB for further action. Def. App. at 12 (Army Reg. 27-1, 11 7-5(a)(3)) (emphasis added).
Considering that PRB is the gatekeeper for all misconduct cases consisting of "more
than a minor or technical violation," plaintiff s argument that he was entitled_ under
Army regulations_to an SSjA review of his court-martial files is meritless. Plaintiff
was entitled to-and was afforded_"notice and an opportunity to comment" prior to
TjAG imposing discipline, as required by Army regu1ations. Def. App. at 13 (Army
[PSI]"``_WaS not independently certified by a SSjA. See AR at 57.
l3 "A PSI normally will not be conducted if the alleged or suspected violation . . . [h]as been
thoroughly investigated under another procedure." Def. App. at 10-11 (Army Reg. 27-1,
15
Reg. 27-1, 11 7-8(a)(2)); see also id. at 27 (Rule 109(a)); AR at 63-66, 144. Plaintiffs
disciplinary procedure comports with Army regulations, and thus his claim must fail.
IV. Due Process
Plaintiff next argues that he is entitled to relief based on TjAG’s alleged violation
of procedural due process under the Fifth Amendment. See Am. Compl. 1111 131-36. To
properly bring a procedural due process claim, plaintiff must show that there was "(l) a
deprivation; (2) of life, liberty, or property; (3) without due process of law." Light]"oot v.
District ofCo/uml)ia, 273 F.R.D. 3l4, 319 (D.D.C. 2011) (citing Propert v. Dz``strz``ct of
Columbia, 948 F.2d 1327, 1331 (D.C. Cir. 1991). Thus, the first inquiry must be
whether or not the plaintiff was deprived of any legally recognized liberty or property
interest. See Gen. Elec. v. Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010). In order for a
plaintiff to have a property interest in a benefit, he must show that he has "a legitimate
claim ofentit1ement to it." Ba’. ofRegents ofState Colleges v. Roth, 408 U.S. 564, 577
(1972). "Only after finding the deprivation of a protected interest do we look to see if
the [government’s] procedures comport with due process." Gen. Elec., 610 F.3d at 1 17
(internal quotation marks and citation omitted).
Courts in this Circuit have repeatedly found that "[t]here is no protected property
interest in continued military service." Spadone v, McHugh, 864 F. Supp. 2d 18l, 189
(D.D.C. 2012) (citing Willzelrn v. Caldera, 90 F. Supp. 2d 3, 8 (D.D.C. 2000)); see also
11 7-3(1>)>-
16
Knehans v. Alexander, 566 F.2d 312, 314 (D.C. Cir. 1977) (holding plaintiff"had no
constitutionally protected entitlement to continued active duty as a commissioned officer
in the Army"); Srnith v_ Harvey, 541 F. Supp. 2d 8, 15 (D.D.C. 2008) (stating that there is
"no constitutionally-protected property interest in continued military service"``). Given
that the law of our Circuit is so clear,l‘l plaintiff has not sufficiently pled the elements of a
Fifth Amendment due process violation and thus this claim must also fail.l5
CONCLUSION
Accordingly, for all the foregoing reasons, the Court GRANTS defendant’s motion
for summary judgment. An Order consistent with decision accompanies this
Memorandum Opinion.
l
RICHARD J. (LEQN
United States District judge
li lndeed, if there is no protected property or liberty interest in continued military service
generally, there can certainly be no such interest in continued service in a particular military
occupation See Partington v. Houck, 840 F. Supp. 2d 236, 242 (D.D.C. 2012) ("Plaintiff has
no cognizable liberty interest in the limited practice of law before naval cou1ts.")l4; see also
Wilhelni, 90 F. Supp. 2d at 8 ("Plaintiff has no due process right to practice medicine in the U.S.
Army."). The D.C. Circuit questioned (in dicta) the rationale behind the District Court’s finding
in Partz``ngton-that there was no protected property interest in continued service as a military
lawyer. See Partz'ngton v. Houck, 723 F.3d 280, 287 (D.C. Cir. 2013). Nevertheless, the D.C.
Circuit agreed with the District Court’s judgment and affirmed the dismissal of plaintiff s Fifth
Amendment due process claims. See id.
l5 Even assuming, arguendo, that plaintiff had identified the deprivation of a protected property
or liberty interest; it would be of no consequence, as 1 find that plaintiff was afforded sufficient
due process under the circumstances, as discussed more fully in Section 111 above.
17