Carl FOSTER, Plaintiff, v. Ray MABUS, Secretary of the Navy, et al., Defendants.
Civil Action No. 11-1931 (BAH).
United States District Court, District of Columbia.
Sept. 29, 2012.
895 F. Supp. 2d 135
BERYL A. HOWELL, District Judge.
based upon a reduced hourly compensation rate of $350 for counsel and $98 for paralegal work. The challenged claims for clerical tasks and for work performed for plaintiffs Parks, Timms, and West will be allowed. The claim for prejudgment interest will be denied. An appropriate order accompanies this memorandum opinion.
Andrea McBarnette, U.S. Attorney‘s Office, Washington, DC, for Defendants.
MEMORANDUM OPINION
BERYL A. HOWELL, District Judge.
Plaintiff Carl M. Foster brings this action against Ray Mabus, Secretary of the Navy, Rear Admiral David F. Steindl of the United States Navy, and Major General Raymond C. Fox of the United States Marine Corps under the Administrative Procedure Act (“APA”),
I. BACKGROUND
The plaintiff enlisted in the United States Marine Corps in September of 1977 and was ordered to active duty on May 24, 1978. Compl. ¶ 3, ECF No. 1; Administrative Record (“AR“) at 131, ECF No. 6. The plaintiff served over twenty-one years on active duty in primarily supply and logistics positions before retiring as a Master Sergeant (E-8) in October 1999. Compl. ¶ 4; AR at 131. In April 1999, shortly before his retirement from active duty, the plaintiff was certified as an MCJROTC instructor for a period of four years. Compl. ¶ 5; AR at 128.
The Junior Reserve Officers’ Training Corps (“JROTC“) is a military service program in high schools throughout the nation, sponsored by the Armed Forces. See
On April 22, 2009, the plaintiff submitted two purchase request documents (“PRDs“) for the use of MCJROTC funds to support leadership training for five cadets at Louisiana Tech University. Id. at 331. The trip was cancelled, but the funding remained obligated, and the plaintiff later called Bill Herriman (an MCJROTC Purchasing Agent) to request that the funding be used instead for “leadership training” from September 10 to 13, 2009. Id. The funding was approved, and a later call from the plaintiff to Cammie Herriman (MCJROTC Budget Manager) requesting an increase in funding due to increased costs was also approved. Id.
The September 2009 trip involved the Amite High School cross-country team, which the plaintiff coached. Id. To use the MCJROTC funds, students who attended the trip had to be members of the MCJROTC. Compl. ¶ 16; AR at 331. Of the twelve cross country team students who went on the trip, however, only seven were cadets of the MCJROTC. Compl. ¶ 17; AR at 331. The plaintiff alleges that, with the approval of Principal Michael Stant and Lieutenant Colonel Bias (“Lt. Col. Bias“) — the Senior Marine Instructor at Amite High School and the plaintiff‘s immediate Marine superior — he decided to name non-MCJROTC members of the cross country team as substitute participants for the trip because the cross-country team was targeted for recruitment. Compl. ¶ 16.
On September 11, 2009, the day after the plaintiff left for the trip, Lt. Col. Bias contacted Lieutenant Colonel Strohman (“Lt. Col. Strohman“) — the Regional Director of the MCJROTC region in which Amite High School is located and Lt. Col. Bias‘s immediate Marine superior — and informed him that “there might be some inconsistencies regarding PRD‘s and a trip being sponsored by Amite High School to Destin, Florida.” AR at 331. The plaintiff has consistently contended that Lt. Col. Strohman “in fact was aware of the non-cadet participation.” Pl.‘s Opp‘n to Def.‘s Mot. to Dismiss (“Pl.‘s Opp‘n“) at 3, ECF No. 10; see also AR at 162 (plaintiff‘s statement that “[Lt. Col. Bias] was briefed on all the new details of the coordination” for the September 2009 trip); id. at 414 (Principal Stant‘s statement that “he had a problem believing [Lt. Col.] Bias was not aware of the Destin trip plans“). On September 17, 2009, W.E. McHenry (“Dr. McHenry“), Director of the MCJROTC program, appointed Lt. Col. Strohman to conduct a preliminary investigation into the “legitimacy of [the two] PRD‘s as they relate to the direct support of the [MCJROTC] Program at Amite High School.” Id. at 329.
Lt. Col. Strohman filed a report of his preliminary investigation on September 22, 2009, which concluded that there was “zero leadership training or any MCJROTC training” conducted on the September 2009 trip, that not all of the students who went on the trip were MCJROTC cadets, and that the cost of the trip totaled $2,656.45. Id. at 330-32. On September 23, 2009, Dr. McHenry notified the plaintiff that he was being considered for decertification as a result of his “alleged misappropriations of government funds,” and that he “ha[d] [the] opportunity to submit both a statement and any materials [he] fe[lt] [were] germane and pertinent.” Id. at 327. On October 5, 2009, the plaintiff submitted a written statement regarding the incident. Id. at 325.
On November 16, 2009, Dr. McHenry forwarded Lt. Col. Strohman‘s report, the plaintiff‘s acknowledgment of decertification proceedings (including the plaintiff‘s written statement), and Dr. McHenry‘s September 23 notification letter to the Commanding General of Training and Ed-ucation
On January 6, 2010, Commanding General M.G. Spiese of TECOM declined to decertify the plaintiff. Id. at 321. General Spiese stated in his decision that “[t]his does not imply a lack of seriousness of this incident, nor condoning this in any way,” and he decided that the plaintiff “[would] be provided an opportunity to make the appropriate adjustments in his approach to his MCJROTC duties.” Id. General Spiese directed Lt. Col. Strohman to counsel the plaintiff, “in writing, regarding his attempted misuse of MCJROTC administered funds,” and to notify the plaintiff that “any future impropriety or misconduct can result in the loss of his instructor certification.” Id.
Lt. Col. Strohman sent the plaintiff a “Counseling Statement” on January 28, 2010, which stated, inter alia, that the plaintiff was to “execute [his] duties as the Marine Instructor under the cognizance and supervision of [Lt. Col. Bias],” and that the plaintiff was no longer authorized to “make decisions concerning, or handle [MCJROTC] funds.” Id. at 319. Per Lt. Col. Strohman‘s letter, from that point forward any PRDs for MCJROTC funds had to be “signed or initialed by [Lt. Col. Bias].” Id. The Counseling Statement concluded by stating that the plaintiff‘s “future actions [would] be watch[ed] closely by [Lt. Col. Bias] and [Lt. Col. Strohman],” and that Lt. Col. Strohman would “not tolerate the slightest slip in performance or judgment in [the plaintiff‘s] actions that reflect on [his] character or the performance of [his] assigned duties as a Marine Instructor.” Id. at 320. In accordance with this counseling, Lt. Col. Bias notified Principal Stant, the plaintiff, and the Purchasing Agent for Amite High School that “all expenditures from MCJROTC accounts ... require the signature of [Lt. Col. Bias],” and that “[e]xpenditures not approved by [Lt. Col. Bias] shall not receive funding from MCJROTC accounts. It is, therefore, imperative that approval is sought prior to making purchases that require reimbursement from MCJROTC accounts.” Id. at 411.
B. Second Decertification Proceeding
On February 22, 2010, Principal Stant asked the plaintiff to organize a concession booth at the school‘s basketball game on February 26, 2010, the proceeds from which were to go to the school‘s weightlifting program, which is not associated with the MCJROTC. Id. at 356, 359-61. The plaintiff stated that he had previously “prepared a hand written purchase order dated [February 9, 2010] for [the] acquisition of ... concession items” for an event on February 15, 2010, the proceeds from which were to go to MCJROTC. Id. at 356. According to the plaintiff, because the February 15 event was intended to raise funds for the MCJROTC, the plaintiff had written “JROTC” on the account line for the February 9 purchase order. See id. at 362 (purchase order form). The February 9 purchase order form was never processed and went unused because the plaintiff was unable to attend the February 15 event. Id. at 356. When Principal Stant subsequently asked the plaintiff to organize the basketball concession stand, the plaintiff says that he “decided to adjust the quantities and use the same [February 9] purchase order,” which still had the
Upon reviewing the quarterly report for MCJROTC funds, Lt. Col. Bias noticed the withdrawal of funds and notified Lt. Col. Strohman. Id. at 340. Lt. Col. Strohman later reported that, when he spoke with the plaintiff regarding the withdrawal of funds in February, the plaintiff said that “he felt that because the Principal asked him to go get the concessions for the basketball game that he did not need approval from [Lt. Col. Bias] in order to access MCJROTC activity account funds.” Id. at 341. The misappropriated funds were later returned to the MCJROTC account by Principal Stant, see id. at 410, who wrote a letter on April 13, 2010, detailing how the withdrawal was a “paperwork error” that was “[d]ue to [a] change in bookkeepers.,” id. at 416. Lt. Col. Strohman reported that the misappropriation was not due to a clerical error, but rather was “an error on the part of [the plaintiff] to request the money out of the [MCJROTC] account and a clear violation of the directives given to him by [Lt. Cols. Bias] and [Strohman].” Id. at 340.
In addition to the issues with the misappropriation of MCJROTC funds, Lt. Cols. Bias and Strohman contemporaneously noted issues with the plaintiff‘s attitude and commitment to the MCJROTC program. In his May 27, 2010 evaluation of the plaintiff‘s performance as an instructor, which rated the plaintiff overall as “below average,” Lt. Col. Bias stated that he did “not believe that [the plaintiff] keeps the MCJROTC program as his top priority.” Id. at 180-81. In the same evaluation, Lt. Col. Bias stated that the plaintiff had “taken the position of not doing anything he is not specifically instructed to undertake,” including his “failure to attend a mandatory meeting with parents of cadets.” Id. at 182. Lt. Col. Bias also noted the plaintiff‘s “general distrust of [Lt. Cols. Bias] and [Strohman],” and the plaintiff‘s “unprofessional behavior.” Id. Lt. Col. Strohman similarly reported in April 2010 that “[w]hen directed by [Lt. Col. Bias] to accomplish a task, [the plaintiff] would comment that it was not directed in the counseling letter.” Id. at 340-41.
On June 21, 2010, Lt. Col. Strohman initiated a second request to decertify the plaintiff. Id. at 337. On July 14, 2010, Dr. McHenry recommended that the plaintiff be decertified. Id. at 178, 334. The Staff Judge Advocate, another component within TECOM, however, recommended not to decertify, citing the fact that he was “not convinced this was anything more than a clerical error” after reviewing the statements of the plaintiff and Principal Stant. Id. at 178. On July 27, 2010, the Commanding General decertified the plaintiff, stating: “I have carefully considered the information provided concerning your second misuse of funds. I have determined that your continued service as a Marine Instructor with the MCJROTC Program is not in the best interests of the U.S. Marine Corps.” Id. at 226.
On July 28, 2010, the Marine Corps TECOM notified the Naval Service Training Command that they had decertified the plaintiff, and on August 9, 2010, the Naval
On July 21, 2011, the plaintiff sent a letter to Department of the Navy in an attempt to appeal the NJROTC Instructor Certification Board‘s decision, raising three grounds to set aside the Board‘s decision: (1) the Board had not identified what the grounds were for the decertification; (2) a private investigation had “revealed some questionable antics” by Lt. Col. Bias; and (3) a polygraph examination had concluded that the plaintiff was telling the truth about not intentionally taking MCJROTC funds or falsifying documents and believing that Lt. Col. Bias was aware that non-MCJROTC students were participating in the September 2009 trip to Florida. Id. at 260-61. Rear Admiral David Steindl of the U.S. Navy replied on September 7, 2011 that he concurred with the Board‘s decision. Id. at 315.
Rear Admiral Steindl found the plaintiff‘s arguments “unpersuasive.” Id. at 316. First, the Rear Admiral noted that the August 9, 2010 letter to the plaintiff stated that the Navy was considering revoking his certification as a “result of [the plaintiff‘s] decertification as a [MCJROTC] instructor,” and that the relevant Navy regulation “authorizes us to consider revocation when we determine that ‘the conduct, performance, and evaluations of an instructor’ indicate that ‘continued certification is not in the best interests of the JROTC program.‘” Id. Second, the Rear Admiral stated that Lt. Col. Bias‘s conduct “is not relevant and has no bearing on our decision” because “the conduct at issue is that of [the plaintiff].” Id. Finally, the Rear Admiral stated that “intent to misuse funds or falsify documents is not and has never been the salient issue,” that “[w]hether [the plaintiff] took this action intentionally or negligently is not the point,” and that “[a]ny misuse, however motivated, of federal tax dollars is unacceptable, especially following a written directive to have no role in allocating federal funds.” Id.
On August 29, 2011, the plaintiff requested reconsideration of the MCJROTC decertification decision from the current Commanding General of TECOM, id. at 379, but the Commanding General of TECOM has yet to grant the plaintiff‘s request. See Compl. ¶ 49; Def.‘s SMF ¶ 19.
The plaintiff filed the Complaint in the instant action on November 2, 2012. Pending before the Court are the defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment, ECF No. 8, and the plaintiff‘s Cross-Motion for
II. STANDARDS OF REVIEW
A. Summary Judgment
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
In ruling on a motion for summary judgment, the Court must draw all justifiable inferences in favor of the nonmoving party and shall accept the nonmoving party‘s evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123 (D.C.Cir.2011). The Court is only required to consider the materials explicitly cited by the parties, but may on its own accord consider “other materials in the record.”
B. Administrative Procedure Act
Under the APA,
III. DISCUSSION
A. Committed to Agency Discretion
The defendants first argue that the decertification decisions of the Marine Corps and the Navy are non-justiciable2 because they are “committed to agency discretion.” See Def.‘s Mem. at 12-15; Def.‘s Reply in Supp. Mot. Dismiss or, in the Alternative, for Summ. J. and Opp‘n to Cross Mot. Summ. J. (“Def.‘s Reply“) at 3-6, ECF No. 13. The defendants contend that the standard by which the Navy and Marine Corps make decertification decisions, i.e., whether doing so is “in the best interests” of the military branch, does not provide a judicially manageable standard, which precludes APA review. Def.‘s Mem. at 13-15; Def.‘s Reply at 5-6.
There exists a “strong presumption that Congress intends judicial review of administrative action.” Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986). Therefore, “judicial review of a final agency action by an aggrieved person will not be cut off unless there is [a] persuasive reason to believe that such was the purpose of Congress.” Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds, Califano, 430 U.S. at 105, 97 S.Ct. 980. The APA provides that final agency actions are “subject to judicial review.”
The Supreme Court has held that, deciding whether the “committed to agency discretion” exception applies “requires careful examination of the statute on which the claim of agency illegality is based.” Webster, 486 U.S. at 600, 108 S.Ct. 2047. In addition to the statutory language, “[j]udicially manageable standards may be found in formal and informal policy statements and regulations.” Padula v. Webster, 822 F.2d 97, 100 (D.C.Cir.1987). In other words, the “no law to apply” standard is satisfied when there are “no legal norms pursuant to which to evaluate the challenged action.” Drake v. FAA, 291 F.3d 59, 70 (D.C.Cir.2002).
First, the Court observes that the defendants’ argument that the “best interests” standard, by itself, precludes judicial review, is incorrect. The “best interests” standard was not the standard legislated by Congress, but rather was the standard
Beginning with the statutory language, there are a number of potential standards against which to evaluate the discretion exercised in decertification decisions. Although the statute is silent regarding decertification, it contains a number of standards underlying certification. See
Furthermore, because the Court may look to “formal and informal policy statements and regulations” to find judicially manageable standards, the Court will also consider agency guidance from the Marine Corps and the Navy in determining whether judicially manageable standards exist. See Padula, 822 F.2d at 100. One thing that is clear from both the statute and the agency guidelines is that annual performance evaluations of JROTC instructors are a highly relevant consideration in the decertification decisionmaking process. See
Because the plaintiff was only certified as an NJROTC instructor for a little over four months in 2010, it appears that he never underwent an NJROTC performance evaluation. The plaintiff did, however, receive numerous performance evaluations over the course of his eleven years of service in the MCJROTC program. Those evaluations contain a rubric of fourteen facets of MCJROTC classroom instruction, ranging from “Instructor Planning and Preparation” to “Personal Appearance” to “Discipline.” See AR at 250. The evaluations also contain a space for the Senior Military Instructor to “[c]omment[ ] on the major strengths and weaknesses of the Instructor.” Id. Additionally, because the Marine Corps guidance enjoins Regional Directors to recommend for decertification any instructors whose “conduct is prejudicial to the goals and objectives of the program,” such goals and objectives — for example, helping students “[d]evelop[] an understanding of leadership skills and the advantages of strong moral character” and “[d]evelop[] in students a sense of pride and personal discipline and responsibility,” MCO 1533.6E, at 1-1 — are yet another source of judicially manageable standards by which to assess the exercise of agency discretion.
This is not to say that the subjective nature of decertification decisions does not impart considerable discretion upon the Marine Corps and the Navy, but “deferential review is not the same as no review at all.” Dickson, 68 F.3d at 1406 n. 17. Review of these decertification decisions “helps ensure that a second tier of ‘secret law’ absolving some but not others from the rigors of the statute does not impugn the equality of the principal law which does receive the benefit of judicial review.” Id. Thus, based upon the contents of
B. Arbitrary and Capricious Review
In passing upon adjudications like the decertification decisions at issue in the instant action, agencies are “required to ‘examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.‘” NetCoalition v. SEC, 615 F.3d 525, 532 (D.C.Cir.2010) (internal quotation marks omitted) (quoting State Farm, 463 U.S. at 43, 103 S.Ct. 2856). “A fundamental requirement of administrative law is that an agency ‘set forth its reasons’ for decision; an agency‘s failure to do so constitutes arbitrary and capricious agency action.” Tourus Records, Inc. v. DEA, 259 F.3d 731, 737 (D.C.Cir.2001) (quoting Roelofs v. Sec‘y of Air Force, 628 F.2d 594, 599 (D.C.Cir.1980)). “The agency‘s statement must be one of ‘reasoning‘; it must not be just a ‘conclusion‘; it must ‘articulate a satisfactory explanation’ for its action.” Butte Cnty. v. Hogen, 613 F.3d 190, 194 (D.C.Cir.2010) (quoting Tourus Records, 259 F.3d at 737). “This does not mean that an agency‘s decision must be a model of analytic precision,” though “an agency‘s explanation must minimally contain ‘a rational connection between the facts found and the choice made.” Dickson, 68 F.3d at 1404 (quoting State Farm, 463 U.S. at 43, 103 S.Ct. 2856). In conducting this review, a court is “attempting to identify whether ‘the decision making process was deficient, not whether [the] decision was correct.” Id. at 1405 (alteration in original) (quoting Kreis v. Sec‘y of Air Force, 866 F.2d 1508, 1511 (D.C.Cir.1989)).
The Navy‘s decertification decision was also arbitrary and capricious, though for a slightly different reason. The Certification Board‘s remarks indicate that it found that the plaintiff had “stopped doing his job, including not attending mandatory meeting with parents of cadets,” and that he had “elected to NOT make comments” on his most recent performance evaluation that “could have been beneficial to his cause.” AR at 312. The Board notably did not include any finding that the plaintiff had actually misused funds (as opposed to the withdrawal being a clerical error); rather, the Board merely noted that the plaintiff stood “accused of misuse of funds [a] second time.” Id. In a moment of remarkable candor, the Board admitted its indecision based on the record it had before it, stating “[t]his is a difficult call,” possibly because the Board did “not have all the Findings the MCJROTC program had when they decided to decertify.” Id. Nevertheless, the Board decertified the plaintiff on the rationale that “[s]ince [the Marine Corps] found cause to [decertify],” the Board was “hard pressed to recommend [Navy certification].” Id. at 313. The Board went so far as to make a note that “No USMC Cert 4 No USN Cert.” Id.
In sum, the Navy‘s rationale for decertifying the plaintiff was: If the Marine Corps decertified, “how can our program not do the same?” Id. at 312. Rather than give the plaintiff‘s certification an independent assessment and consider
IV. CONCLUSION
For the reasons set forth above, the defendant‘s Motion to Dismiss or, in the Alternative, for Summary Judgment, ECF No. 8 is DENIED, and the plaintiff‘s Cross-Motion for Summary Judgment, ECF No. 11 is GRANTED. The decisions by the defendants to decertify the plaintiff as an instructor in the MCJROTC and the NJROTC are vacated, and this matter is remanded to the Marine Corps and the Navy for reconsideration of the plaintiff‘s continued certification as a JROTC instructor. An appropriate Order accompanies this Memorandum Opinion.
BERYL A. HOWELL
UNITED STATES DISTRICT JUDGE