Spelman v. Chipman

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EILED
) NUV 04 2013
STEPHEN E. SPELMAN ) cl k
er ,U.S. District& B k t
plaintiff § Courts forthe District ofm(]]or|:i)niii(a
)
v_ ) Case: l:l3-cv-01134(RJL)
)
DANA K. CHIPMAN )
)
Defendant. )
)
MEMORANDUM 0 ION
(N@v¢mb@r 2 2013) [Dkt. #3]
On July 25, 2013, plaintiff Stephen Spelman ("plaintiff" or "Spelman") filed suit
against defendant Lieutenant General Dana K. Chipman, the Judge Advocate General of
the United States Army ("defendant" or "TJAG"), alleging violations of the
Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. See Compl. 111 102-l l6.
The same day, plaintiff filed a Motion for Temporary Restraining Order ("TR()") and a
Motion for Preliminary injunction seeking to enjoin defendant from taking disciplinary
action against plaintiff and notifying plaintiffs bar licensing authorities thereof. See Pl.’s
Mot. for TRO [Dkt. #2]; Pl.’s Mot. for Pre1iminary Injunction ("PI Mot.") [Dkt. #3]. On
July 26, 2(`)13, this Court declined to issue a TRO and set a date to hear argument on
plaintiffs Motion for Preliminary Injunction. The parties briefed the motion, and an oral
argument was held on August 20, 2013. After due consideration of the pleadings and
oral argument, plaintiffs Motion for Preliminary lnjunction is DENIED.
l
BACKGROUND
Plaintiff is an attorney licensed to practice in Massachusetts, Connecticut, and
New York. Compl. 11 6. Hc currently resides and practices law in l\/lassachusetts.
Compl. 11 7. Plaintiff is also a member of the Army Retired Reserve. See Defendant’s
Appendix ("Def. App.") [Dkt. #7-1] Al. Plaintiff enlisted in the Regular Army as a
Private in 1982. Compl. 11 8. He attended law school from 1988 to 1991, during which
time he served in the U.S. Army Reserve. Compl. 1111 10~13. Plaintiff became a member
of the Judge Advocate General’s Corps (JAGC) in 2000. Co1npl. 11 15.
ln September 2012, plaintiff pled 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 Def. App. Al, 2-10, 2l~23. He was
sentenced to sixty days confinement, ordered to forfeit $4,()00 of pay per month for five
months, and reprimanded for his conduct. Def. App. A2l. Following execution of his
sentence, plaintiff elected reassignment to the Retired Reserve rather than a "separation
action under Army Regulation 135-175, paragraph 2-11." See Def. App. Al. Plaintiff
entered the Retired Reserves on February l, 2013. Compl. 11 29. Prior to doing so,
however, he notified each of his state bar licensing authorities and clients of his general
court-martial conviction.
On February 12, 2013, the Professional Responsibility Branch ("PRB") of the
Office of the Judge Advocate Gcneral notified plaintiff that it had reviewed the
allegations of professional misconduct that were the basis of plaintiffs court-martial
conviction. Def. App. A3 l-33. Plaintiff was given an opportunity to respond to the
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allegations and was informed that TJAG would make the ultimate decision regarding
disciplinary action. Ia’. 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 Def. App. A34-37.
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 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 Def. App. A39-40. On June 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 Def.
App. A49~60. The same day, plaintiff filed his complaint and motions for a TRO and
preliminary injunction in this Court.
A hearing was set on plaintiffs Motion for a TR() for the afternoon of July 26,
2013. Prior to thc hearing, government counsel informed plaintiff that TJAG had already
decided to take the disciplinary action outlined in the June 13, 2013 letter. See Def. App.
A62. 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 Injunction. See Def.’s Notice [Dkt. #6].
ANALYSIS
A preliminary injunction is an "extraordinary and drastic remedy," Murzafv.
Geren, 553 U.S. 674, 689 (2008), and "courts should grant such relief sparingly,"
Konarskz` v. Donovan, 763 F. Supp. 2d 128, 133 (D.D.C. 201 l). The factors a court must
consider in determining whether to grant injunctive relief are, of course, familiar: (l)
whether plaintiff has a substantial likelihood of success on the merits; (2) whether
plaintiff will suffer irreparable harm if the injunction is not granted; (3) whether the
injunction will substantially injure other interested parties; and (4) whether the injunction
would further the public interest. See Smokz'ng Everywhere, Inc. v. U.S. Fooa’ & Drug
Admin., 680 F. Supp. 2d 62, 66 (D.D.C. 2010). While some courts apply these factors on
a sliding scale, "the movant must, at minimum demonstrate that irreparable injury is
likely in the absence of an injunction." GEO Specz`ally Chemicals, Inc. v. Husz'sz`an, 923
F. Supp. 2d 143, 147(D.D.C. 2013) (citations and quotations omitted) (emphasis in
original). "A mere possibility of irreparable harm is not enough, and a court may refuse
to issue an injunction without considering any other factors when irreparable harm is not
dcmonstrated.” Id. (citing Wz`nter v. Natural Resources Def. Councz`l, lnc., 555 U.S. 7,
22 (2008)).
Plaintiff here cannot demonstrate that he will likely suffer irreparable injury under
the "high standard" set by our Circuit. See Chaplairzcy of F ull Gospel Churches v_
Erzglamz', 454 F.3d 290, 297 (D.C. Cir. 2006). Under that standard, a movant must
demonstrate that the injury about which he complains is "both certain and great" and "of
such imminence that there is a ‘clear and present’ need for equitable relief to prevent
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irreparable harm." Id. (quoting Wisc. Gas C0. v. FERC, 758 F.2d 669, 674 (D.C. Cir.
1985)). Here, plaintiff alleges that he will be irreparably harmed by defendant’s
imposition of professional discipline and subsequent notification of his court-martial
conviction to his respective bar licensing authorities. According to plaintiff, if this Court
does not issue preliminary injunctive relief, "[he] will be confronted with a situation in
which the defendant has taken action without authorization, yet the plaintiff will [sic] no
recourse, either with the Army, with his state and federal bar disciplinary authorities, or
with respect to his reputation in his community and with his clients." See Pl Mot. at l6.
1 disagree.
Plaintiffs allegations as to irreparable harm are not persuasive. First, preliminary
injunctive relief cannot prevent TJAG from withdrawing plaintiffs certification under
UCMJ Article 27(b) and indefinitely suspending him from practicing before Ar1ny Courts
or under TJAG. Clearly, TJAG has that authority. lndeed, that disciplinary action was
effectively taken by TJAG prior to the TRO hearing on August 26, 2013, leaving as the
only remaining issue TJAG’s notification of plaintiffs bar licensing authorities. Plaintiff
understandably fears that such notification could lead to reciprocal sanctions by his bar
licensing authorities as well as possible reputational injury.] See Pl.’s Reply [Dkt. #l3] at
9-l l. This fear alone, however, is not enough to warrant such extraordinary relief,
especially where plaintiff has not offered any evidence to substantiate his claim that such
harm will likely occur. See Comm. in Solidarizj) with People ofEl Sal. (CISPES) v.
l Plaintiff acknowledged that he does not currently represent, nor does he plan to
represent in the future, any parties before any Army Courts.
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Sessz`ons, 929 F.2d 742, 745-46 (D.C. Cir. 1991) (declining to issue injunctive relief "to
prevent injuries neither extant nor presently threatened, but only merely feared"). lndeed,
plaintiff acknowledged that he had already notified his bar licensing authorities and
clients in 2012 of his general court-martial conviction, Compl. 11 43, and none of the
authorities in the three states where plaintiff is licensed have taken any action, to date,
against him, Compl. 11 97. Moreover, as to possible reputational damage within his
community, plaintiff has offered no evidence that such harm has either occurred or would
likely be irreparable in nature. See Sampson v. Murray, 415 U.S. 61, 91 (1974); Deaver
v. Seymour, 822 F.2d 66, 69 (D.C. Cir. 1987).
Having failed to establish that irreparable injury would likely result from a denial
of plaintiff s motion, the Court need not reach the other factors necessary to warrant
preliminary injunctive relief. See CilyFed Fz`n. Corp. v. Ojj"z`ce of T hrif‘ Supervz`sion, 58
F.3d 738, 747 (D.C. Cir. 1995).
CONCLUSION
For all of the foregoing reasons, this Court concludes that plaintiff has failed to
carry his burden of persuasion with respect to his request for preliminary injunctive relief.
Accordingly, plaintiffs Motion for Preliminary Injunction [Dkt. #3] is DENIED. An
appropriate order will issue with this Memorandu1n Opinion.
RICHARDJ. LW
United States Dis ` udge