Colley v. James

• Decision Date: 15 May 2017
• Docket Number: Civil Action No. 15-cv-1385 (TSC).
• Citation: 254 F.Supp.3d 45
• Parties: Edward A. COLLEY and Frederick D. Malcomb, Jr., Plaintiffs, v. Deborah Lee JAMES, Air Force Secretary, et al., Defendants.
• Court: U.S. District Court — District of Columbia

254 F.Supp.3d 45

Edward A. COLLEY and Frederick D. Malcomb, Jr., Plaintiffs,

v.Deborah Lee JAMES, Air Force Secretary, et al., Defendants.

Civil Action No. 15-cv-1385 (TSC).

United States District Court, District of Columbia.

Signed May 15, 2017

Edward A. Colley, Canyon Country, CA, pro se.

Frederick D. Malcomb, Jr., Castaic, CA, pro se.

Jeremy S. Simon, U.S. Attorney's Office for the District of Columbia, Washington, DC, Marian L. Borum, Federal Deposit Insurance Corporation, Legal Division, Professional Liability Unit, Arlington, VA, for Defendants.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge

Pro se plaintiffs Edward A. Colley and Frederick D. Malcomb, Jr. are retired Air Force officers who were instructors in an Air Force Junior Reserve Officer Training Corps ("AFJROTC") unit. The Air Force decertified Plaintiffs as AFJROTC instructors after it found that they failed to timely submit certain records. Plaintiffs unsuccessfully challenged the decision through an Air Force administrative process and subsequently filed this lawsuit against the Air Force and the two individual decision makers, seeking reversal of the decertification.¹ Plaintiffs bring claims under the Administrative Procedure Act, 5 U.S.C. § 551 et seq . ; the Privacy Act, 5 U.S.C. § 552a ; the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq . ; the Paperwork Reduction Act, 44 U.S.C. § 3501 et seq . and the Due Process clause of the Fifth and Fourteenth Amendments of the United States Constitution.² (Am. Compl. ¶¶ 194–96, 101–02, 203a, 222, 239a, 239c–239d, 242a).

Before the court are the following motions: (1) Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment or to Transfer Venue (ECF No. 6); (2) Plaintiffs' Motion for Preliminary Injunction (ECF No. 16); (3) Plaintiffs' Motion for Preliminary Injunction and Request for a Hearing (ECF No. 20); and (4) Plaintiffs' Motion for Telephone Status Conference (ECF No. 23).³ For the reasons set forth below, the court will GRANT Defendants' motion to transfer this action to the Central District of California and DENY Plaintiffs' motions.

A. BACKGROUND

Colley and Malcomb were employed by the Hart School District in Valencia, California as JROTC instructors. (Am. Compl. ¶¶ 19, 23–24). Pursuant to federal law, all JROTC instructors "must be certified by the Secretary" of that branch "as a qualified instructor" in areas such as leadership, civics and ROTC related topics. 10 U.S.C. § 2033(a). The Secretary for each branch of the military is responsible for "establish[ing] minimum acceptable standards for performance and achievement for qualified [ROTC] units." 10 U.S.C. § 2031(c)(1)–(3). Consistent with this authority, the Secretary of the Air Force publishes AFJROTC "Instructions" that cover management of the ROTC units. "COMPLIANCE WITH THIS PUBLICATION IS MANDATORY " appears in bold near the top of those instructions. (AR 321, AFJROTC 36–2002; AR 275, AFJROTC 36–2001; AR 177, AFJROTC 36–2001).⁴

Although Plaintiffs are not Air Force employees, the Air Force reimburses the school district for part of Plaintiffs' instructor salaries. (See Am. Compl. ¶ 15). Air Force ROTC instructors must: (1) "meet the criteria established by appropriate instructions and meet certification ... requirements to perform instructor duty"; and (2) "meet and maintain school and Air Force requirements and standards." (AR 331, AFJROTC 36–2002, ¶ 2.1.1; AR 339, AFJROTC 36–2002, ¶ 4.4). The Air Force's "Holm Center" or "Headquarters" ("HQ") manages instructor compliance and may decertify instructors "for cause." (AR 331, AFJROTC 36–2002 ¶ 2.1.2; AR 332, AFJROTC 36–2002 ¶ 2.2.2; AR 335–36, AFJROTC 36–2002, ¶ 3.1.1).

As part of the ROTC program, the Plaintiffs used school equipment, as well as the Air Force's "Automated Data Processing Equipment (ADPE)." (Am. Compl. ¶ 27). Plaintiffs admit that "[t]he Air Force requires accountability and safekeeping" of the ADPE. (Id . ¶ 28). Specifically, instructors must "conduct an annual AIM Inventory," which includes accounting for all computers, projectors, and digital cameras. (AR 206, AFJROTC 36–2001 (9/8/10) ¶ 13.4.5; AR 284, AFJROTC 36–2001 (5/28/14) ¶ 4.3.1).

1. 2014 PROBATION

Malcomb claims that in January 2014, he sent the unit's AIM inventory to Amy Frasier, the Equipment Control Officer ("ECO"), via facsimile and email, after which he telephoned her to confirm receipt. (AR 385–86, Malcomb Decl. ¶ 8; see AR 414). Several months later, on March 7, 2014, the AFJROTC Director sent an email to all units with a subject line that included "Annual IT equipment account compliance" and an April 10, 2014 deadline. (AR 149). The email explained that ADPE accountability was an Air Force requirement that had to be completed by the deadline. (Id .) The email also indicated that each unit was required to submit four documents in order to be considered "compliant": (1) an equipment custodian appointment letter; (2) training certificates (one for each instructor); and (3) an AIM inventory. (Id .) The email further explained that a new submission process had been created in WINGS—a computerized software program—and instead of emailing or faxing their ADPE documents, all units had to upload documents to WINGS. (Id .)

Despite this, Malcomb asserts that he took no additional action because he had faxed and emailed the inventory on January 20, and the March 7 email did not state that Plaintiffs were not in compliance. (AR 414; AR 385–87 Malcomb Decl. ¶¶ 8, 24; Am. Compl. ¶¶ 51, 55–56). Plaintiffs also claim they did not believe the email applied to them because they had already complied with the inventory submission deadlines found in Air Force Manual provision 33–153 ("AFM 33–153"). (AR 4, Colley Dec. ¶ 12; AR 386, Malcomb Decl. ¶ 12). As the court will discuss below, AFM 33–153 apparently contained more general guidelines about ADPE accountability than did the AFJROTC instructions and the emails from HQ.

On April 7, three days before the deadline, the AFJROTC Region 4 Director emailed Plaintiffs and other units explaining that WINGS showed their units had not started their ADPE accountability, despite prior warnings that the April 10 deadline "was extremely important!" (AR 151). The units were warned that they should start the ADPE accountability process in order to "avoid any possible negative impacts." (Id .) It is undisputed that Plaintiffs were on spring break when the email was sent. (Am. Compl. ¶ 58).

The day after the deadline, April 11, the AFJROTC Director sent noncompliant units, including Plaintiffs', an email with the subject line: "ADPE Missed Sus pense. " (AR 153) (emphasis in original). The email stated:

On 7 Mar we notified you of an AF level requirement to account for all AF owned ADPE. You were given a suspense of 10 April to complete your inventory and update it in WINGS. As of today, 11 April, this requirement has not been completed for your ADPE account. ...

If you have not completed the suspense by 18 Apr, both instructors at your unit will be placed on probation until the unit's ADPE account is fully compliant. If you fail to bring the ADPE account within compliance by 30 Apr, both instructors will be considered for decertification.

(AR 153).

Although Plaintiffs were on spring break on April 11, the break ended on April 15, and both Plaintiffs saw the email upon their return. (See Am. Compl ¶ 58). Even though the email explicitly stated the recipient units were non-compliant, both Plaintiffs claim that, once again, they did not believe their unit was out of compliance because they had faxed and emailed the equipment inventory in January. (AR 4, Colley Decl. ¶ 14; AR 386, Malcomb Decl. ¶ 14).

On April 22, the Air Force placed both Plaintiffs on probation. (AR 155; Am. Compl. ¶ 61). In his email to the school principal and Plaintiffs informing them of the suspension, the Director noted that "[a]ccounting for ADPE is a strict Air Force compliance requirement. This is an annual recurring requirement." (AR 155). Finally, he warned: "If the instructors fail to bring the ADPE account within compliance by April 30, 2014, [HQ] will initiate decertification actions for both instructors." (Id . 156).

Later that day, Malcomb emailed the Director, indicating that because the unit had previously sent the AIM inventory to ECO Frasier, he had thought his unit was "ahead of the game," but that he intended to submit another inventory. (AR 414). Malcomb also mentioned his "confusion on what documents were needed" and his discussions with Frasier about "how to upload [the documents] into WINGS." (See id .) Plaintiffs entered all of the required documents before the April 30 deadline and the Air Force subsequently removed them from probation. (AR 158).

The following month, the Director published a new set of instructions requiring that the units use WINGS to account for ADPE. (AR 275; AR 284, AFJROTC 36–2001 (5/28/14) ¶ 4.2.1). The instructions also required that instructors log into WINGS and the instructors' AFJROTC email account daily in order to remain current on all policies. (AR 299, AFJROTC 36–2001 (5/28/14) ¶ 7.2, ¶ 7.2.1).

2. 2015 DECERTIFICATION

On March 14, 2015, the Regional Director sent an email to the units providing instructions on how to determine whether they had complied with the ADPE requirements. (AR 160). Again, Plaintiffs contend that they believed the email did not apply to them because they were purportedly in compliance with AFM 33–153. (AR 5, Colley Decl. ¶ 24; AR 387, Malcomb Decl. ¶ 24). Plaintiffs also contend that the email was unclear because it was labeled as a " ‘reminder’ with no reference to what it purported to remind [Plaintiffs] of." (ECF No. 10, Pls. Mot. to Dismiss SOF Response # 51) (hereinafter "Pls. SOF Resp."). Although Plaintiffs admit Malcomb's email account was functioning, they defend their conduct in part by contending that Colley's email account was "inactive or closed" at this time. (Id .) (citing AR 506); ECF No. 22, Pls. Reply...