 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued December 12, 2012                Decided July 23, 2013

                         No. 12-5038

                EARLE ARTHUR PARTINGTON,
                       APPELLANT

                              v.

   JAMES W. HOUCK, VICE ADMIRAL, JAGC, USN, ET AL.,
                      APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:10-cv-01962)


    Earle Arthur Partington, pro se, argued the cause for
appellant. On the briefs were Charles W. Gittins and Jeffrey A.
Denner.

    Arthur B. Spitzer and Daniel M. Gluck were on the brief for
amici curiae American Civil Liberties Union of the Nation's
Capital, et al. in support of appellant.

     Marina Utgoff Braswell, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.
                                2

   Before: TATEL and KAVANAUGH, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

   Opinion for the Court filed by Senior Circuit Judge
SENTELLE.

     SENTELLE, Senior Circuit Judge: Attorney Earle Partington
brought this action against the Judge Advocate General of the
Navy and other naval officials, alleging violation of his
constitutional rights in an administrative decision which
suspended him from practice before naval courts. His action
purported to set forth four causes of action. The district court
entered summary judgment in favor of the defendant as to part
of the action and dismissed the rest. Partington v. Houck, 840
F. Supp. 2d 236 (D.D.C. 2012). Partington seeks review,
alleging various errors in the grant of the judgments against him.
We conclude that the district court committed no reversible
error, and for the reasons set forth more fully below, affirm.

                     I. BACKGROUND

    A. The Underlying Events

     Appellant Partington is an experienced practicing lawyer
and retired member of the Army Judge Advocate Generals
Corps, who, as a part of his practice, has engaged in the
representation of military personnel before military courts,
including those of the Navy. In May 2006, he represented
Stewart Toles, an Aviation Structural Mechanic with the United
States Navy, in a General Court-Martial at Pearl Harbor. Toles
faced four charges, including sexual harassment and video
voyeurism, stemming from his frequent, covert recordings of
females in various states of undress, and other similar
misconduct on or near a Navy base in Hawaii. Pursuant to a
pretrial agreement with the prosecution, Toles entered guilty
                                3

pleas to two of the charges and their specifications and to all but
two specifications under the video voyeurism charge, while
pleading not guilty to one charge. Under the applicable military
court procedure, a military judge conducted a providence
inquiry. The providence inquiry is a more elaborate relative of
the Rule 11 proceeding under the Federal Rules of Criminal
Procedure. In the conduct of such an inquiry, the military judge
has a duty to ensure that a plea is voluntary and that there is a
factual basis for the plea. See Rules for Courts-Martial
910(d),(e); United States v. Hartman, 69 M.J. 467, 468 (CAAF
2011). Before taking Toles’s pleas, the military judge had asked
counsel to raise any motions before the entry of the plea.
Nonetheless, Partington waited until virtually the end of the
providence inquiry—after the military judge had found that
Toles “knowingly, intelligently, consciously waived [his] rights
against self incrimination,” and his rights to trial and
confrontation—to make a motion to dismiss. That motion,
which concededly was well taken, was based on a jurisdictional
defect in the charges of video voyeurism, in that the charges and
specifications did not allege that the offenses took place within
the “special maritime and territorial jurisdiction” of the United
States, an element of the crime defined under 18 U.S.C. § 1801.
While it is undisputed that Partington’s motion on behalf of
Toles was well taken, it is equally undisputed that Partington
was aware of the defect before the entry of the plea and the
providence inquiry.

     Unsurprisingly, some confusion ensued. The military judge
set aside Toles’s guilty pleas and the pretrial agreement, finding
that Toles could not have given a provident plea while knowing
he would challenge the sufficiency of the video voyeurism
specifications. After the military judge entered his ruling, trial
counsel for the prosecution agreed that if Toles was willing to
enter a guilty plea to a lesser included offense and be bound by
the earlier pretrial agreement, the government would also agree
                                4

to adhere to the pretrial agreement and withdraw some of the
other charges, including video voyeurism. The military judge
then accepted the plea. Thereafter, Toles was sentenced to a bad
conduct discharge and five years confinement. Toles retained
Partington to represent him during the automatic appeal of the
courts martial conviction. See 10 U.S.C. § 866(b)(1).

     In his appellate brief for Toles, Partington made assertions
that the military judge had “acquitted” appellant on some of the
offenses and had “dismissed” some specifications—
representations which the Navy-Marine Corps Court of Criminal
Appeals (NMCCA) found to be misleading and not consistent
with the record. Indeed, the appellate court described various
arguments proffered by Partington in his brief to be
“disingenuous,” clear misrepresentations of the record, and
“wholly unsupport[able]” by the record. The court described
itself as specifically “troubled by . . . appellant’s wholly
unsupported allegations of error . . . .” These allegations, raised
by Partington in the Toles brief, included that the military judge
“dismissed” the video voyeurism specifications under charges
1 and 4; that the military judge “acquitted” appellant as to those
offenses; that the judge “ruled” that the video voyeurism
specifications did not allege that offense; and, that the appellant
“moved for neither an acquittal nor a dismissal of those
specifications.” All these arguments the appellate court
described as disingenuous. So disturbed was the court that it
ordered a copy of its opinion to be forwarded to the “Judge
Advocate General of the Navy and the Navy’s Rules Counsel for
review and action as appropriate.” The clerk of court of the
NMCCA forwarded the court’s opinion as a professional
responsibility complaint against Partington.
                                  5

    B. The Navy JAG Disciplinary Proceedings

      In October of 2008, the Office of the Rules Counsel of the
Navy Judge Advocate General Corps notified Partington that it
had received the opinion of the NMCCA as a complaint against
Partington in his capacity as defense counsel in the Toles case.
It further notified him that the Rules Counsel was conducting an
inquiry to determine whether he had violated rules of
professional responsibility, particularly Rules 3.1 through 3.3.
The notice invited Partington to “provide written comment on
the issues raised” by the complaint, and advised him that his
written comment must be provided within ten working days of
the receipt of the letter from the Rules Counsel. By letter of
October 26, 2008, Partington made responsive comments. On
June 18, 2009, the Rules Counsel appointed Captain Robert
Porzeinski, a Navy JAG officer, to conduct a preliminary
inquiry into the allegations of professional responsibility
violations against Partington. On June 29, Captain Porzeinski
informed Partington of his investigation and afforded him an
opportunity to submit any written statement or other written
material he wished Porzeinski to consider. Partington’s
response to the letter offered nothing substantive, but requested
a “charge sheet.”

     Captain Porzeinski forwarded his report to the Rules
Counsel on July 16, 2009, concluding that, based on a
preponderance of the evidence, Partington had violated Rules
3.1 and 3.3 of the Navy’s Rules of Professional Responsibility.1


       1
           Those Rules provide:

                RULE 3.1 MERITORIOUS CLAIMS AND
       CONTENTIONS. A covered attorney shall not bring or
       defend a proceeding, or assert or controvert an issue therein,
       unless there is a basis for doing so that is not frivolous, which
                            6



includes a good faith argument for an extension, modification,
or reversal of existing law. A covered attorney representing
an accused in a criminal proceeding or the respondent in an
administrative proceeding that could result in incarceration,
discharge from the naval service, or other adverse personnel
action, may nevertheless defend the client at the proceeding
as to require that every element of the case is established.

    RULE 3.3 CANDOR AND OBLIGATIONS
TOWARD THE TRIBUNAL

         a. A covered attorney shall not knowingly:

                 (1) make a false statement of material fact or
law to a tribunal;

                 (2) fail to disclose a material fact to a tribunal
when disclosure is necessary to avoid assisting a criminal or
fraudulent act by the client;

                  (3) fail to disclose to the tribunal legal
authority in the controlling jurisdiction known to the covered
attorney to be directly adverse to the position of the client and
not disclosed by opposing counsel;

                 (4) offer evidence that the covered attorney
knows to be false. If a covered attorney has offered material
evidence and comes to know of its falsity, the covered
attorney shall take reasonable remedial measures; or

                 (5) disobey an order imposed by a tribunal
unless done openly before the tribunal in a good faith
assertion that no valid order should exist.

        b. The duties stated in paragraph a continue to the
conclusion of the proceedings, and apply even if compliance
requires disclosure of information otherwise protected by
                                 7

After further correspondence between Porzeinski and
Partington, Porzeinski sent the Rules Counsel two supplements
to his July 16 report affirming his earlier recommendation to
open an ethics investigation against Partington. The Rules
Counsel subsequently appointed Captain Robert Blazewick, a
Navy JAG officer, to conduct an ethics investigation of
Partington, and informed Partington of the investigation.

     In October and November of 2009, Captain Blazewick sent
Partington multiple letters in which he attempted to set a hearing
and included a charge sheet with specifications for Partington’s
alleged violations of Rules 3.1 and 3.3. In December 2009,
Captain Blazewick sent Partington a letter stating that he had
substantially completed the ethics investigation. The letter also
set a hearing date. Partington responded by letter that he did not
see the point in attending a hearing if the Navy did not intend to
provide him basic due process. Although Captain Blazewick
held a hearing, Partington did not appear.

     On February 19, 2010, Blazewick submitted an ethics
investigation report to the Rules Counsel in which he opined that
Partington had violated Rules 3.1 and 3.3, and recommended
Partington’s indefinite suspension. A summary of the
investigation of Partington was forwarded to Vice Admiral


       Rule 1.6.

                c. A covered attorney may refuse to offer evidence
       that the covered attorney reasonably believes is false.

               d. In an ex parte proceeding, a covered attorney shall
       inform the tribunal of all material facts known to the covered
       attorney which are necessary to enable the tribunal to make an
       informed decision, whether or not the facts are adverse.
                                8

James W. Houck, Judge Advocate General of the Navy. In May
of 2010, Admiral Houck notified Partington by certified mail of
his conclusion that Partington had intentionally misrepresented
the posture of the Toles case on appeal. Admiral Houck’s notice
went on to explain that although the military judge at Toles’s
court martial had said he was entering a “finding” of not guilty,
the military judge had clearly misspoken in the context of the
proceedings, and Partington grossly exaggerated the import of
those statements on appeal. The letter informed Partington that
he was indefinitely suspended from practicing law before the
Navy. The Navy also notified other jurisdictions of its
suspension of Partington, leading to disciplinary measures
before the Court of Appeals for the Armed Forces and at least
one state jurisdiction where Partington was licensed.

                        II. ANALYSIS

        We review summary judgments de novo and consider
evidence in the light most favorable to the non-moving party.
Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C. Cir. 2013).
In reviewing a district court’s ruling on summary judgment, we
have discretion to uphold its judgment under a different legal
theory than that applied by the trial court, as long as the record
supports our reason for affirmance and we “avoid denying the
opposing party a fair opportunity to dispute the facts material to
the new theory.” United States v. General Motors Corp., 518
F.2d 420, 441 (D.C. Cir. 1975) (internal quotation marks
omitted).

       A. The Navy Judge Advocate General’s Authority to
Discipline Partington

       Partington contends that the Judge Advocate of the Navy
had no statutory authority to impose discipline upon civilian
defense attorneys appearing at naval courts-martial, and that
                                9

therefore, the entire proceedings against him and the action
taken are void. The district court rejected this contention and
held that the Judge Advocate General had authority to discipline
Partington based on the Uniform Code of Military Justice and
the Manual for Courts-Martial. We agree. The Uniform Code
of Military Justice, Article 36, authorizes the President to
prescribe “[p]retrial, trial, and post-trial procedures” for cases
arising under the Uniform Code of Military Justice “triable in
courts-martial.” 10 U.S.C. § 836(a). Under that authority, the
President prescribed the Manual for Courts-Martial by
Executive Order. See Prescribing the Manual for Courts-
Martial, United States, 1951, 16 Fed. Reg. 1,303 (Feb. 10,
1951). The Manual for Courts-Martial includes the Rules for
Courts-Martial. See M.C.M. at II-1 (2012).

         Rule 109(a) of the Rules for Courts-Martial states that
each Judge Advocate General “is responsible for the
professional supervision and discipline of . . . judge advocates,
and other lawyers who practice in proceedings governed by the
[Uniform Code of Military Justice] and [the Manual for Courts-
Martial].” Each Judge Advocate General may prescribe rules of
professional conduct, and those rules may include sanctions for
violating the rules, including indefinite suspension. R.C.M.
109(a). Acting within the authority granted by R.C.M. 109(a),
the Judge Advocate General promulgated an Instruction on
“Professional Conduct of Attorneys Practicing Under the
Cognizance and Supervision of the Judge Advocate General.”
See JAGINST 5803.1C (Nov. 9, 2004); 32 C.F.R. Part 776. This
instruction includes within the definition of “covered attorneys”
“[a]ll civil service and contracted civilian attorneys who practice
law or perform legal services under the cognizance and
supervision of the JAG.” JAGINST 5803.1C ¶ 4(c); 32 C.F.R.
§ 776.2(b)(iii).
                                10

        Under a plain reading of R.C.M. 109(a)’s phrase, “other
lawyers who practice in proceedings governed by the [Uniform
Code of Military Justice] and [the Manual for Courts-Martial],”
“other lawyers” includes civilian attorneys who defend military
servicemen tried in courts-martial. Thus, R.C.M. 109(a)
delegates to each Judge Advocate General the professional
supervision and discipline of military and civilian attorneys who
represent clients in courts-martial, rendering JAGINST
5803.1C’s definition of “covered attorneys” a valid exercise of
the Navy Judge Advocate General’s delegated authority.

        Partington, disputing the natural reading of R.C.M.
109(a), maintains that the term “other lawyers” in R.C.M. 109(a)
refers to non-JAG active duty attorneys. Appellant Br. at 30.
He also contends the President does not have authority under
Article 36 of the Uniform Code of Military Justice to prescribe
rules governing civilian attorneys, claiming that Congress’s
delegation of rule-making authority to the President in Article
36 of the Uniform Code of Military Justice “can only relate to
areas of court-martial procedure, not to matters of substantive
law.” Id. at 27 (citing Ellis v. Jacob, 26 M.J. 90, 92–93)
(C.M.A. 1988)).

        We do not find Partington’s arguments persuasive. He
cites no case supporting his cramped interpretation of R.C.M.
109(a), but instead argues that “when Congress grants executive
officials the authority to discipline civilian attorneys, it does so
expressly, not sub silentio.” Appellant Br. at 22, 31. In support
of this statement, he cites two statutes in which Congress
expressly gave agencies the authority to discipline attorneys who
appear before them. See id. at 22–24 (citing 35 U.S.C. § 32
(authorizing the Patent and Trademark Office to discipline
attorneys appearing before it); 31 U.S.C. § 330 (authorizing the
Department of Treasury to discipline attorneys appearing before
it)). We are not convinced. The fact that Congress has
                                11

expressly given authority to other agencies to discipline
attorneys does not prove that an agency may only have that
authority by way of an explicit statutory provision. To the
contrary, Congress gave the President broad authority to
prescribe court-martial procedures in the Uniform Code of
Military Justice, see 10 U.S.C. § 836, and his delegation of
professional supervision over all lawyers who practice before
court-martial proceedings does not contravene any cited
statutory provision of the Uniform Code of Military Justice.

     Partington’s related argument—that the President’s
delegated rule-making authority “can only relate to areas of
court-martial procedure, not to matters of substantive law,”
Appellant Br. at 27—assumes that the JAG’s rules of
professional conduct and disciplinary procedures are matters of
substantive law and not, as the phrase “Complaint Processing
Procedure” implies, procedures. See JAGINST 5803.1C,
Enclosure (2) (Nov. 9, 2004). But Partington provides no
authority to support this assumption, and the cases he cites are
not on point. Each case explains that the President may not
prescribe binding rules in areas of substantive criminal law, such
as the definition of “distribute” in a narcotics case, United States
v. Omick, 30 M.J. 1122, 1124 (N.M.C.M.R. 1989), the rules for
proving or rebutting a defendant’s intent when it is an element
of a crime, Ellis v. Jacob, 26 M.J. 90, 91–93 (C.M.A. 1988), or
whether a conspirator may be held liable for overt acts that
occurred before joining a conspiracy. United States v. Johnson,
25 M.J. 878, 884 (N.M.C.M.R. 1988). Because the disciplinary
procedure is an area of court-martial procedure, Partington’s
argument that the President did not have authority to delegate
responsibility for professional supervision to the Judge
Advocate General is incorrect. Accordingly, we conclude that
                                 12

the district court did not err in holding that the Navy Judge
Advocate General had authority to discipline Partington.2

     B. Fifth Amendment Claim

     Partington next contends that the proceedings against him
conducted by the Judge Advocate Generals Corps did not afford
him due process in violation of his rights under the Fifth
Amendment. The district court dismissed Partington’s Fifth
Amendment claim on the rationale that Partington had “not
identified an actionable liberty or property interest in the
practice of law before naval courts.” Partington v. Houck, 840
F. Supp. 2d at 242 (D.D.C. 2012). On appeal, Partington and
amici ACLU argue that the district court erred in determining
that Partington had no protectable property interest. See
Appellant Br. at 32–34; Amici Br. at 4–11. They rely on
numerous cases that have recognized a property interest in an
attorney’s license to practice law that cannot be taken away “in
a manner or for reasons that contravene the Due Process”
protection of the Constitution. See, e.g., Willner v. Committee
on Character and Fitness, 373 U.S. 96, 102–03 (1963).
Appellees argue, as the district court held, that the cases relied
upon by appellant and amici are inapposite, as the Navy JAG
“neither suspended nor revoked Partington’s license to practice
law.” Appellees Br. at 24. This may constitute a distinction
without a difference. The revocation of an attorney’s license
might often affect only his privilege to practice before the courts
of the licensor, and to recognize the distinction argued by the
appellees might create an exception to a recognized property
interest which would substantially devour the recognized

        2
         In concluding that the NJAG had authority to discipline
Partington, we note that Partington’s argument to the contrary is
particularly specious in light of the consent form he signed, in which
he agreed to abide by the Navy’s rules and regulations for court-
martial proceedings.
                               13

interest. Nonetheless, we reach the same conclusion as the
district court, albeit for a different reason. Assuming that
Partington did have a protectable property interest in practicing
before the naval courts, the district court nonetheless correctly
entered judgment against him on his Fifth Amendment claim
because the Judge Advocate General provided Partington ample
due process before imposing discipline upon him.

     Due process at its core requires notice and hearing. “The
fundamental requirement of due process is the opportunity to be
heard at a meaningful time and in a meaningful manner.”
Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal
quotation marks omitted). In attorney disbarment proceedings
the Supreme Court has explained that “‘notice should be given
to the attorney of the charges made and opportunity afforded
him for explanation and defence.’” In re Ruffalo, 390 U.S. 544,
550 (1968) (quoting Randall v. Brigham, 74 U.S. 523, 540
(1868)). Thus, in determining whether the JAG afforded
Partington due process in his disciplinary proceedings, we
review the record to determine whether Partington received
notice and an opportunity to be heard. The record is replete with
communications between the JAG and Partington in which the
JAG gave Partington notice it was pursuing an ethics
investigation against him and gave Partington opportunity to be
heard, beginning with the Rules Counsel’s letter to Partington in
October 2008. This letter explained that the Rules Counsel
viewed the NMCCA opinion as a complaint, and that an inquiry
would be conducted to determine whether there was probable
cause to believe that Partington had violated any rules of
professional responsibility, “in particular, Rules 3.1 through
3.3.” Joint Appendix 275. In that letter, the Rules Counsel also
explained that “you may provide written comment on the issues
raised” by NMCCA opinion. Id.
                                 14

     After the Rules Counsel appointed Captain Porzeinski to
conduct a preliminary investigation, Captain Porzeinski
informed Partington of the preliminary investigation, explaining
in a June 2009 letter that “[t]he purpose of this letter is to afford
you an opportunity, as required by [JAGINST 5803.1C], to
review all evidence that I consider in my inquiry and provide
you a reasonable period of time to submit a written statement or
other written material that you would like me to consider.” Id.
317. Captain Porzeinski, in a July 2009 letter responding to
statements Partington had written, again gave Partington the
opportunity to submit “any written statement or other written
material that you would like me to consider.” Id. 336–37.

     On October 22, 2009, after Captain Porzeinski had
submitted his preliminary investigation report to the Rules
Counsel, the Rules Counsel again wrote to Partington,
explaining that the preliminary investigation had determined, by
a preponderance of the evidence, that violations of the Rules of
Professional Conduct had occurred, and that Captain Blazewick
had been appointed to conduct the ethics investigation.
Enclosed with that letter were a list of professional conduct
violations Partington was alleged to have committed, and the
preliminary inquiry prepared by Captain Porzeinski, which
exhaustively reviewed the trial court record and compared it to
the statements Partington made on appeal, and which reviewed
Partington’s correspondence after the Rules Counsel received
the complaint. See id. 310–35. The Rules Counsel’s October
2009 letter also explained the ethics investigation procedure and
informed Partington of his rights, including the right to elect a
hearing. On October 22, 2009, Captain Blazewick also sent
Partington a letter informing him of his rights and attempting to
set a date for a hearing, and a week later sent another letter
giving Partington additional time to schedule a hearing and a list
of the specific rules Partington was alleged to have violated,
with supporting factual allegations. After a few months’
                               15

additional correspondence, Partington wrote to Captain Morin
that he was refusing to attend the hearing, alleging that the JAG
had been consistently depriving him of due process and
explaining that he had “no intention in participating in this
blatant violation of the Sixth Amendment right to counsel.” Id.
405. Shortly after this correspondence, Captain Blazewick
completed his ethics investigation. Based on that ethics
investigation the Judge Advocate General decided to indefinitely
suspend Partington.

     In reviewing this exhaustive record, it is clear to us that
Partington received ample due process. He was informed
numerous times of the specific violations of the NJAG’s Rules
of Professional Conduct alleged against him and was provided
with several opportunities to respond, including an opportunity
for a hearing that he effectively waived. It is therefore apparent
that Partington was not deprived of the fundamental due process
rights of notice and hearing under Mathews v. Eldridge.

     Partington attempts to buttress his claim of deprivation of
due process by a scattershot, twelve-point attack, which he
asserts demonstrates that he was “clearly denied procedural due
process in the NJAG proceeding.” Appellant Br. at 34. None of
the points reflect a deprivation of due process. Some are
conclusory allegations that the Navy “made no effort to follow
its own regulations.” Some deal with substantive decisions of
the Navy. Some are trivial and contrived.

    The fall of Partington’s general argument of due process
deprivation takes with it his assertion of a claim for
constitutional tort under Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971). His whole Bivens claim is based on the
due process arguments which we have already rejected.
                                16

    C. APA Claim

     Partington also asserts a claim for review under the
Administrative Procedure Act. In this claim he asserts that “the
decision of the NJAG was arbitrary, capricious, and based upon
improper interpretation of the pertinent facts and legal
standards.” Joint Appendix 37. The district court dismissed
Partington’s claim under the APA because it determined that
neither the NJAG nor the Court of Appeals for the Armed
Forces was an “agency” within the meaning of the APA. See
Partington, 840 F. Supp. 2d at 244. Although the district court
correctly held that the Court of Appeals for the Armed Forces is
not an agency, see Shaw v. United States, 209 F.2d 811, 813
(D.C. Cir. 1954), we hold that its determination that the NJAG’s
indefinite suspension of Partington was not agency action was
erroneous.

    Under the APA, an “agency” “means each authority of the
Government of the United States, whether or not it is within or
subject to review by another agency, but does not include . . . the
courts of the United States [or] . . . courts martial and military
commissions.” 5 U.S.C. §§ 551, 701. Although “[t]he statutory
definition of ‘agency’ is not entirely clear, . . . the APA
apparently confers agency status on any administrative unit with
substantial independent authority in the exercise of specific
functions.” Soucie v. David, 448 F.2d 1067, 1073 (D.C. Cir.
1971).

     In concluding that the NJAG was not an agency, the district
court relied on another district court case, McKinney v. Caldera,
141 F. Supp. 2d 25 (D.D.C. 2001), aff’d sub nom., McKinney v.
White, 291 F.3d 851 (D.C. Cir. 2002), in which the district court
held that the Judge Advocate General of the Army was not an
agency. See Partington, 840 F. Supp. 2d at 243. In McKinney,
the plaintiff, a Sergeant Major of the Army, was tried in court-
                              17

martial and filed various post-trial petitions alleging
prosecutorial misconduct. McKinney, 141 F. Supp. 2d at 26.
The Judge Advocate General, after ordering an investigation
into the allegations and reviewing the record, denied the
plaintiff’s petitions without providing any reasoning for his
decision. Id. at 28–29. The McKinney district court, after
reviewing the case law on the definition of “agency” and the
Judge Advocate General’s relationship to other components of
the army, concluded that it was not clear whether the Judge
Advocate General was vested with substantial independent
authority. Id. at 34.

        On appeal, we did not discuss whether the Judge
Advocate General is an agency, instead addressing the threshold
issue of whether we could review Judge Advocate General
decisions reviewing courts-martial in light of the APA’s express
exclusion of “courts martial and military commissions” from its
definition of “agency.” McKinney, 291 F.3d at 853. Ultimately,
we determined that Congress’s decision to establish a separate
judicial system for courts-martial review, of which the Judge
Advocate General’s “final and conclusive” review was a part,
together with the exclusion of courts martial from the APA’s
definition of “agency,” precluded APA review of the Judge
Advocate General’s decision. Id. at 854–56.

     This case is factually distinct from McKinney, where the
plaintiff sought to have us review a decision by the Judge
Advocate General made pursuant to his review under Article 69
of the UCMJ of a court martial decision. See 10 U.S.C. § 869.
In contrast to McKinney, the disciplining of Partington did not
involve any aspect of the criminal justice procedure established
by the UCMJ, but was instead an ethics investigation undertaken
pursuant to the Judge Advocate General’s responsibility for the
professional supervision of attorneys. See R.C.M. 109(a).
                                18

      Although the NJAG’s authority to discipline attorneys may
derive from the UCMJ, see 10 U.S.C. § 836, Partington’s
proceedings are not part of the “separate justice system”
Congress provided for in the UCMJ for military personnel, and
Partington’s APA claim is not “an attempt to end run a military
justice system” in which Congress established procedures for
review. McKinney, 291 F.3d at 855–56. Instead, Partington’s
disciplinary proceeding is peripheral to the adjudication of
criminal liability in the military justice system, and pertains
solely to the Judge Advocate General’s responsibility to ensure
attorneys act ethically and to maintain the integrity of the courts-
martial. This case is more similar to Piersall v. Winter, 435 F.3d
319 (D.C. Cir. 2006), in which we explained that decisions
rendered by the Board for Correction of Naval Records, “a
civilian administrative board established by the Congress
separate and apart from the system of military courts,” were
reviewable under the APA because such review did not breach
the statutory prohibition which controlled in McKinney. Id. at
324. Just so here. The Judge Advocate General’s Office, when
it is operating outside the statutory exclusion for courts-martial,
fits comfortably within the statutory definition of agency stated
above. Accordingly, we conclude that the Judge Advocate
General took agency action in the disciplinary proceedings
against Partington and that the decision in those proceedings is
subject to review under the APA. Notwithstanding our
conclusion that the district court erred in the ground upon which
it dismissed Partington’s APA claim, we will nonetheless affirm
the judgment on a different ground, that is, that the Judge
Advocate General’s decision was not arbitrary or capricious.

    Partington asserts that the Judge Advocate General’s
decision violated the APA because: (a) JAGINST 5803.1C does
not establish a standard of proof; and (b) the record was
insufficient to support the Judge Advocate General’s findings
                               19

that Partington misrepresented the trial court proceedings on
appeal before the NMCCA. We disagree with both assertions.

     First, JAGINST 5803.1C does establish standards of proof.
Under JAGINST 5803.1C’s Complaint Processing Procedure,
“The [Preliminary Inquiry Officer] shall personally review the
results of the preliminary inquiry to determine whether, by a
preponderance of the evidence, a violation of the Rules or the
Code of Judicial Conduct has occurred.” JAGINST 5803.1C,
Enclosure (2), at 8. This procedure also directs the Judge
Advocate General, when receiving an ethics investigation, to
either: (1) direct further inquiry; (2) determine that the
allegations are unfounded or no further actions warranted; or (3)
determine that the allegations are supported by clear and
convincing evidence, and take appropriate action. JAGINST
5803.1C, Enclosure (2), at 13–14. Thus, Partington’s assertion
that the JAGINST did not establish standards of proof is
incorrect.

     Second, we conclude that the Judge Advocate General’s
decision that Partington misrepresented the military judge’s
statements in his appellate brief was not arbitrary or capricious,
and was supported by substantial evidence. See 5 U.S.C. § 706.
Indeed, the Judge Advocate General’s ultimate decision came
after a preliminary inquiry and ethics investigation, both of
which extensively cited the record of trial and compared it to the
statements in Partington’s appellate brief to support their
respective author’s conclusions that Partington had made
misstatements on appeal. See Joint Appendix 283–314, 319–35.
These investigations reasonably determined that the military
judge, in the context of the proceedings, did not “acquit” Toles
or dismiss the charges against him, see id. 309–10, 331–33, and
that Toles had moved to dismiss, in contradiction to Partington’s
statement before the NMCCA that “Toles had moved for neither
                                20

an acquittal nor a dismissal of these specifications.” See id. 310,
331.

     In reviewing Partington’s APA claim, we note that we do
not substitute our judgment for that of the agency or evaluate de
novo whether Partington misrepresented the plea proceedings,
but instead determine “whether the agency’s decisionmaking
was reasoned.” National Treasury Employees Union v. Helfer,
53 F.3d 1289, 1292 (D.C. Cir. 1995); Motor Vehicle
Manufacturers Ass’n v. State Farm Mutual Auto Insurance Co.,
463 U.S. 29, 43 (1983).

     We conclude that the NJAG, in explaining that he found
that Partington filed an appellate brief containing statements
Partington knew were false and misleading, see Joint Appendix
434–35, articulated a “rational connection between the facts
found and the choice made.” Burlington Truck Lines, Inc. v.
United States, 371 U.S. 156, 168 (1962). Because the record
does not support Partington’s APA claim, we affirm the district
court’s judgment dismissing that claim.

                        CONCLUSION

     For the foregoing reasons, we affirm the district court’s
order entering judgment in favor of the defendants. Because we
affirm the dismissal of all claims alleged by Partington, we also
deny Partington’s request for mandamus review.

                                                     So ordered.
