Crooks v. Mabus, 15-5212

• Decision Date: 23 December 2016
• Docket Number: No. 15-5212,15-5212
• Parties: Michael CROOKS, Appellant v. Raymond Edwin MABUS, Jr., Secretary of the Navy and Dee Mewbourne, Rear ADM, USN, Naval Service Training Command, Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

845 F.3d 412

Michael CROOKS, Appellant

v.Raymond Edwin MABUS, Jr., Secretary of the Navy and Dee Mewbourne, Rear ADM, USN, Naval Service Training Command, Appellees

No. 15-5212

United States Court of Appeals, District of Columbia Circuit.

Submitted October 14, 2016

Decided December 23, 2016

John B. Wells was on the briefs for appellant.

R. 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:

The 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 evaluations." Id .

Appellant 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.

In 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.

I. BACKGROUND

Until 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.

On 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.

Following 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.

On 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.

On 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.

II. ANALYSIS

A. Standard of Review

We 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).

B. The Navy Regulation in Article 404(e)(5) of CNETINST 1533.9K is Not Void for Vagueness

Appellant was decertified pursuant to CNETINST 1533.9K, Article 404(e)(5), which provides that an individual's certification may be revoked if,

upon consideration of the conduct, performance, and evaluations of an SNSI/NSI 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.

Appellant claims that this regulation violates the void-for-vagueness doctrine because "a person of ordinary intelligence [cannot] readily identify the applicable standard for inclusion and exclusion." Br. for Appellant at 16 (quoting United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg'l Transit Auth. , 163 F.3d 341, 358–59 (6th Cir. 1998) ). We disagree.

"Outside of the First Amendment context, a plaintiff must show that the law in question ‘is impermissibly vague in all of its applications' " to succeed on a facial challenge. Decatur Liquors, Inc. v. District of Columbia , 478 F.3d 360, 364 (D.C. Cir. 2007) (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ). But cf. Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 2556–62, 192 L.Ed.2d 569 (2015) (finding penal statutory provision was void for vagueness although it would be permissible as applied to some conduct because the statute required applying an uncertain term to "an idealized ordinary case of the crime," id. at 2561, and "not to real-world facts or statutory elements," id. at 2557 ). Appellant's claim falls far short of the ...