Spelman v. McHugh

• Decision Date: 21 August 2014
• Docket Number: Civil Case No. 13-01134 (RJL)
• Parties: STEPHEN E. SPELMAN, Plaintiff, v. JOHN M. McHUGH, as Secretary of the Army, Defendant.
• Court: U.S. District Court — District of Columbia

STEPHEN E. SPELMAN, Plaintiff, v. JOHN M. McHUGH, as Secretary of the Army, Defendant.

Civil Case No. 13-01134 (RJL)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FILED: August 22, 2014

August 21, 2014

MEMORANDUM OPINION

[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 ("Compl.") [Dkt. #1]. On August 20, 2013, plaintiff amended his complaint,¹ 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. Compl.") ¶¶ 16-17, 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,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. ¶ 6. He currently resides and practices law in Massachusetts. See Am. Compl. ¶ 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. ¶ 8. He attended law school from 1988 to 1991, during which time he served in the U.S. Army Reserve. See Am. Compl. ¶¶ 10-13. Plaintiff became a member of the Judge Advocate General's Corps (JAGC)² in 2000. See Am. Compl. ¶ 15.

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-attorney 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 formisconduct under Army Regulation 135-175. See AR at 55, 95-96. Plaintiff entered the Retired Reserve on February 1, 2013. See Am. Compl. ¶¶ 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. ¶ 45.

On February 12, 2013, the Professional Responsibility Branch ("PRJ3") 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 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 plaintiff's 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 plaintiff's state bars of the withdrawal and suspensions. See AR at148-49. 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 plaintiff's Motion for Preliminary Injunction.³ 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 170-71. On August 5, 2013, however, TJAG temporarily suspended the disciplinary action and notification of plaintiff's bar licensing authorities pending this Court's ruling on plaintiff's Motion for Preliminary Injunction. See Def.'s Notice [Dkt. #6]. On November 2, 2013, this Court denied plaintiff's Motion for Preliminary Injunction, 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 CivilProcedure 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 (1986). 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." Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89 (D.D.C. 2006) (citing Nat'l Wilderness Inst. v. U.S. Army Corps of Eng'rs, Civ. No. 010273, 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." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)); see also Atl. Sea Island Grp. LLC v. Connaughton, 592 F. Supp. 2d 1, 12 (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 Plaintiff s 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. 2001). When a district court applies the arbitrary and capricious standard, it "does not resolve factual issues, butinstead acts as an appellate court resolving a legal question." Atl. Sea Island Grp. LLC, 592 F. Supp. 2d at 12-13 (citing James Madison Ltd. v. Ludwig, 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 Natural Res. Council, 490 U.S. 360, 378 (1989); Escobedo 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 Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also MD Pharmaceutical, 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." Udall v. Tallman, 380 U.S. 1, 16 (1965). "[T]he agency's interpretation must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation." Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (internal quotation marks and citation omitted); see also Auer v. Robbins, 519 U.S. 452, 461 (1997); Gen. CarbonCo. 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 Jefferson Univ., 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 Univ., 512 U.S. at 512.

ANALYSIS

The discipline administered by TJAG in this case consists of: (1) withdrawal of plaintiff's certification under Article 27(b) of the 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 plaintiff's 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...