United States Court of Appeals, District of Columbia Circuit
Submitted October 14, 2016
from the United States District Court for the District of
Columbia (No. 1:13-cv-01614)
B. Wells was on the briefs for appellant.
Craig Lawrence and Jason T. Cohen, Assistant U.S. Attorneys,
were on the brief for appellees. Fred E. Haynes, Assistant
U.S. Attorney, entered an appearance.
Before: Tatel, Circuit Judge, and Edwards and Ginsburg,
Senior Circuit Judges.
EDWARDS, SENIOR CIRCUIT JUDGE
Navy maintains a Junior Reserve Officers' Training Corps
("NJROTC") at public and private secondary schools
that apply to establish a unit and meet the applicable
statutory standards. 10 U.S.C. § 2031(a)(1). To support
the program, the Secretary of the Navy may detail certain
"retired officers and noncommissioned officers, "
in addition to other qualified individuals, to serve as
NJROTC instructors. 10 U.S.C. § 2031(c)-(d).
Certification as an "instructor in leadership, wellness
and fitness, civics, and other courses related to the content
of the program, " 10 U.S.C. § 2033(a), is a
prerequisite for retired officers or noncommissioned officers
to serve as NJROTC instructors. The Navy retains the
authority to revoke an instructor's certification if it
determines that the person's "continued
certification . . . is not in the best interests of the
program." Commander, Navy Education and Training Command
Instruction ("CNETINST") 1533.9K, Art. 404(e)(5).
In making such a determination, the Navy considers the
instructor's "conduct, performance, and
Michael Crooks retired as a Major in the United States Marine
Corps on June 30, 1994. Shortly before his retirement, the
Navy certified him as a NJROTC instructor. From 1995 to 2008,
Appellant was employed as a Senior Naval Science Instructor
("SNSI") at Pearl River High School's NJROTC
program in Pearl River, Louisiana. On November 16, 2007,
following receipt of unfavorable reviews from the Principal
of Pearl River High School and a NJROTC Area Manager, the
NJROTC Program Manager revoked Appellant's certification.
Decertification Letter, Joint Appendix ("JA") 50.
On October 22, 2013, after two NJROTC Instruction
Certification Boards upheld his decertification, Appellant
filed suit in District Court to contest his removal from the
NJROTC program. On May 20, 2015, after reviewing the
parties' cross-motions for summary judgment, the District
Court granted judgment to the Navy. Appellant now appeals.
challenging the District Court's judgment, Appellant
advances three principal arguments. First, he contends that
the regulation on which the Navy relied to revoke his
certification is unconstitutionally vague. He also asserts
that the Navy denied him due process because it failed to
accord him adequate notice and opportunity to be heard when
determining whether he should be permitted to continue to
serve as a NJROTC instructor. Finally, he claims that the
Navy's decertification decision was arbitrary and
capricious and unsupported by substantial evidence. For the
reasons explained below, we find no merit in these claims. We
therefore affirm the judgment of the District Court.
2006, Appellant apparently received positive reviews and
evaluations of his performance as a NJROTC instructor at
Pearl River High School. However, beginning in 2006, a number
of parties, including students, the Principal of Pearl River
High School, and the NJROTC Area Manager who was tasked with
reviewing Appellant's work raised concerns about his
performance and conduct. The criticisms levied against
Appellant included claims that he slept during class, left
NJROTC student cadets unattended, failed to adhere to the
NJROTC curriculum, and did not meet the NJROTC's
mandatory bodyweight requirement. 2007 NJROTC Instructor
Evaluation, JA 51. At some point during the decertification
process, the Principal of Pearl River High School provided
the Navy with a letter alleging that Appellant had
"falsely report[ed] to the U.S. Navy the number of
students enrolled at the school which was indicating to the
Navy he met the ten percent quota [necessary] to keep the
unit from going on probation." JA 191; see JA
189-92. Cadets and their parents also submitted letters and
emails suggesting that the substance of Appellant's
classes was not in line with the NJROTC's curriculum.
They also complained about Appellant's "alienat[ing]
. . . class behavior, " which included "slamming a
rod down on tables . . . grabbing cadets by the waist . . .
prodding cadets with the same rod used to slam on tables,
[and] calling cadets names such as 'stupid' and
'moron.'" JA 102; see JA 99-107.
November 16, 2007, after receiving unsatisfactory evaluations
from both the Principal and the NJROTC Area Manager, and
after affording Appellant an opportunity to provide a written
rebuttal of the charges leveled against him, the Navy advised
Appellant that his certification in the NJROTC was
"being revoked due to unsatisfactory marks on [his]
Instructor Evaluation and Observation Report."
Decertification Letter, JA 50. The parties agree that the
decertification action was taken pursuant to CNETINST
1533.9K, Article 404(e)(5), which states that:
"[Instructor c]ertification will be revoked . . . [if]
upon consideration of the conduct, performance, and
evaluations of an [instructor] by the school and/or
designated inspectors, [the Chief of Naval Education &
Training] determines that continued certification of the
instructor is not in the best interests of the program."
See Br. for Appellant at 15; Br. for Appellee at 46.
the initial decertification decision, Appellant's counsel
sent a letter to the Navy demanding a "full
hearing." JA 96. The Navy interpreted this as a
"request for reconsideration" by a NJROTC
Instructor Certification Board ("Certification
Board"). JA 97. Prior to reconsideration by the
Certification Board, Appellant was permitted to submit
additional information, including the results of an
investigation conducted by his counsel's private
investigator, the results of a polygraph test taken by
Appellant, and letters from parents and former students who
supported him. See JA 108-17, 131-36, 138-43,
157-59. The NJROTC Area Manager also provided the
Certification Board with additional materials, including
letters and emails from cadets and their parents regarding
Appellant's conduct. See JA 98-107.
April 23, 2008, the Certification Board affirmed the
revocation of Appellant's instructor certification. JA
183-84. In justifying the action, the Certification Board
members emphasized Appellant's deviation from the NJROTC
curriculum, classroom absences, sleeping in class, and
"incidents of alleged physical contact" with
cadets. JA 176, 179. Appellant appealed the Board's
decision and a second NJROTC Certification Board was
constituted. On September 14, 2008, the second Board found
that Appellant's NJROTC instructor certification should
not be reinstated. JA 219.
October 22, 2013, Appellant filed a complaint in the District
Court seeking vacatur of the Navy's decision and the
restoration of his certification. JA 25. The parties filed
cross-motions for summary judgment and, on May 20, 2015, the
District Court issued a memorandum opinion and order granting
the Navy's motion for summary judgment and denying
Appellant's motion for summary judgment.
Standard of Review
review the District Court's grant of summary judgment
de novo. See Menkes v. U.S. Dep't of
Homeland Sec., 637 F.3d 319, 329 (D.C. Cir. 2011).
"In a case like the instant one, in which the District
Court reviewed an agency action under the [Administrative
Procedure Act ("APA")], we review the
administrative action directly, according no particular
deference to the judgment of the District Court. On an
independent review of the record, we will uphold the agency
action unless we find it to be 'arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law.' 5 U.S.C. § 706(2)(A)." Holland v.
Nat'l Mining Ass'n, 309 F.3d 808, 814 (D.C. Cir.
2002); see Edwards, Elliott, & Levy, Federal
Standards of Review 115-16 (2d ed. 2013).
The Navy Regulation in Article 404(e)(5) of CNETINST