Updated at 5:08 p.m.
Earle Partington, a civilian defense attorney suspended in 2010 from practicing in U.S. naval courts, lost his lawsuit in Washington federal court challenging the authority of the Judge Advocate General of the Navy to discipline him.
U.S. District Senior Judge Frederick Scullin Jr., in an opinion (PDF) published yesterday, ruled that the Navy JAG office does have the power to discipline non-JAG attorneys, according to the executive order setting out the rules for court-martial proceedings.
Partington, who is based in Honolulu, represented a U.S. Navy sailor in 2006 who was charged with secretly videotaping women on base. The sailor pleaded guilty, and was then represented by Partington on appeal.
The United States Navy-Marine Court of Criminal Appeals upheld the conviction, and also cited Partington for using “unsavory tactics,” accusing him of misrepresenting facts of the case in his appellate brief. Following an investigation by the Rules Counsel of the Navy JAG, Partington was indefinitely suspended from practicing in any naval court.
Partington sued the Navy JAG in November 2010 in U.S. District Court for the District of Columbia. He claimed that the disciplinary action was part of an effort by the Navy JAG to pressure civilian – and even military – lawyers against “zealously, professionally, and effectively delivering to their clients competent legal counsel.” Partington also defended the accuracy of his appellate brief.
In the complaint (PDF), Partington claimed that the Navy JAG office only had statutory authority to discipline military attorneys. He also claimed that he was deprived of a property interest – the right to practice law – without being given due process in violation of the Fifth Amendment.
The JAG office, represented by the U.S. attorney’s office in the District, moved (PDF) for dismissal and summary judgment in February 2011. The government cited an executive order that gave the JAG offices for each military branch oversight of 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 Manual” (the government added the underline in its brief).
Scullin agreed, and also found that because Partington wasn’t prevented from practicing law generally, there was no violation of his Fifth Amendment rights; whether or not his due process rights were violated became moot at that point, the judge wrote.
Partington was represented by Jeffrey Denner and Paul Andrews of Denner Pellegrino in Boston. Denner said in a phone interview Wednesday that they are planning to appeal. “We intend to follow this through and hope that the appellate court has a different take on it than the district court did,” Denner said. A spokesman for the U.S. attorney’s office could not immediately be reached for comment.
Scullin is a judge in the U.S. District Court for the Northern District of New York, but he was assigned this case and several others in September to help ease the Washington court’s docket.
A previous version of this article misstated Partington's job title.