Foster v. Mabus, Civil Action No. 11–1931 BAH

• Decision Date: 12 May 2015
• Docket Number: Civil Action No. 11–1931 BAH
• Parties: Carl Foster, Plaintiff, v. Ray Mabus, Secretary of the Navy, et al., Defendants.
• Court: U.S. District Court — District of Columbia

103 F.Supp.3d 95

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.

Signed May 12, 2015

John B. Wells, Law Offices of John B. Wells, Slidell, LA, for Plaintiff.

Andrea McBarnette, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge

Pending before the Court are cross-motions for summary judgment from the defendants, the Secretary of the Navy and the Commanding General of the U.S. Marine Corps' Training and Education Command (“TECOM”), and from the plaintiff, retired Marine Corps Master Sergeant Carl Foster. Defs.' Mot. Dismiss or, alternative, Mot. Summ J. (“Defs.' Mot.”) at 1, ECF No. 34; Pl.'s Mot. Summ. J. on Admin. R. (“Pl.'s Mot.”) at 1, ECF No. 35. This is the second round of summary judgment motions filed by these parties concerning the Marine Corps' decision to decertify the plaintiff as an instructor in the Marine Corps Junior Reserve Officers Training Corps (“MCJROTC”), after the first round resulted in summary judgment for the plaintiff and remand for further consideration by the defendants. SeeFoster v. Mabus(Foster I), 895 F.Supp.2d 135, 148 (D.D.C.2012). For the reasons set forth below, the plaintiff's motion for summary judgment is again granted and the defendants' motion is again denied.

I. BACKGROUND

The general facts of this case were set out in Foster I,895 F.Supp.2d at 138–143. The defendants' decertification decision under review in Foster Idid not necessitate a detailed examination since the motions were resolved based on the simple fact that the defendants offered virtually no explanation for the action taken.Id.at 147. Thus, a more fulsome description of those circumstances is presented below to give context to the instant decision. That discussion is followed by a summary of the holdings in Foster I,and the post-Foster Iprocedural history.¹

A. Factual Background

From 1999 through 2010, the plaintiff was a certified MCJROTC instructor at Amite High School in Amite, Louisiana. Foster I,895 F.Supp.2d at 138, 141. The Junior Reserve Officers' Training Corps is a military service program in high schools throughout the nation, sponsored by the Armed Forces. See10 U.S.C. § 2031. The plaintiff was an alumnus of Amite High School and was teaching there after his retirement from a lengthy career in the Marine Corps. Administrative Record (“AR”) at 301, ECF No. 6.²Prior to the 2009–2010 school year, he received uniformly perfect performance evaluations, with “Outstanding” ratings in every category on every evaluation during that ten year period. AR at 183–201. The plaintiff's streak of perfect evaluations came to an end in 2009 when he began to serve under a new Senior Marine Instructor (“SMI”), Lt. Col. Ronald Bias. AR at 180.

Bias and the plaintiff appear to have clashed almost from the beginning of their working relationship. SeeAR at 156. Bias was recalled to the Marine Corps' Active Reserve on August 1, 2009, with an assignment to the MCJROTC program at Amite High School. AR at 370. The plaintiff contends that this recall to active duty was necessary because Bias had secured retirement prematurely and needed to serve an additional sixteen months to be eligible for retirement. Pl.'s Mem. Supp. Pl.'s Mot. (“Pl.'s Mem.”) at 2, ECF No. 35–2. The plaintiff “immediately expressed reservations concerning this situation and orally complained about an active duty officer being assigned to this position.” Id.Indeed, the assignment, during war-time, of an active duty Marine Corps Lieutenant Colonel to teach at a high school in a small town in Louisiana eventually was questioned by the Marine Corps' highest ranking non-commissioned officer. AR at 12 (Email from Sergeant Major of the Marine Corps Carlton W. Kent to subordinates asking “how can a LtCol [sic] be augmented back to active duty [to] be an instructor at a high school?”).³As the plaintiff notes, after Bias was recalled to active duty, the “professional relationship [between Bias and the plaintiff] and [Bias'] relationship with the school administration started deteriorating.” AR at 358.

Just over a month after Bias was recalled to active duty, the plaintiff took a group of MCJROTC cadets and non-cadets, all of whom were members of the Amite High School cross-country team, to a training exercise at Elgin Air Force Base in Destin, FL. Suppl. AR (“SAR”) at 41, ECF No. 31. The majority of the students were MCJROTC cadets, but some were not, though they were targeted for recruitment into the program. Id.at 43. The day after the plaintiff left with the students for Florida, Bias sent an email to the Regional Director for the MCJROTC program, Lt. Col. Mark. H. Stroman, stating Bias “need[ed] to research an ugly rumor,” and requesting confirmation as to whether Amite High School had any “requests for MCJROTC travel expenses (vehicle, lodging, or meals) for a trip this weekend?” AR at 153 (Sept. 11, 2009 email from Bias to Stroman). The plaintiff contends that Bias was fully briefed on the trip and that all of the paperwork was approved by TECOM. SAR at 44. The record contains an email, dated August 17, 2009, from Bias to Stroman, forwarding a schedule of training events for Amite's MCJROTC. AR at 368–69. Notably, the first of the ten listed “training events” is “NCO TRNG” to take place in September 2009 in Destin, FL. Id.at 369.

Bias' September 2009 email to Stroman triggered a Preliminary Investigation into the trip, conducted by Stroman. SAR at 40–42. Stroman's investigation revealed that five students on the trip were not MCJROTC cadets, id.at 41; that the plaintiff was, at the time, the school's Cross Country coach, id.,and that the training on the trip consisted of “running on trails, workouts on tracks and runs on the beach,” id.at 42. Stroman opined that “[t]here was zero leadership training or any MCJROTC training conducted during the trip ... and that [the plaintiff] was in the wrong to attempt to pay for this trip with government funding.” Id.at 42. Stroman recommended that the matter “be referred to the judge advocate to determine if the amount of money requested meets the threshold for further action by the Marine Corps.” Id.

After completing his investigation, Stroman made clear his decision that he wanted the plaintiff removed from his position. In response to several questions raised by the TECOM Senior Judge Advocate (“SJA”), Stroman stated in an October 24, 2009 email that he had not “require[d] a statement” from Bias as part of Stroman's investigation, but that he would seek such a written statement and submit it with Stroman's investigation summary.⁴AR at 32. Stroman stated his belief that the plaintiff “violated all the things we are attempting to teach the cadets about honest [sic], integrity, decision making and being good citizens.” Id.Based on this belief, Stroman stated to the MCJROTC Director, Dr. William McHenry (“McHenry”), that he planned to remove the plaintiff from his position regardless of whether the TECOM Commanding General opted to decertify the plaintiff based on the Florida trip. Id.

Stroman wrote that “[s]hould the CG decide not to decertify MSgt Foster, then so be it. I will make sure that the MSgt gets a letter of reprimand and an unsat [sic] eval [sic] at the end of the year.” Id.(referring, presumably, to an “unsatisfactory evaluation”). Stroman promised to “make sure to visit [the plaintiff] everytime [sic] [Bias would] go to Louisiana and make him [Bias'] next science experiment.” Id.After noting that the plaintiff's instructor certification expired in February 2011, Stroman stated that he would “never recommend [the plaintiff] for recertification and we can be rid of him in 15 months if the CG does not take action against him now.” Id.Stroman concluded by noting he would not be visiting Amite High School during an upcoming trip to Louisiana because he “wanted to avoid any questions from the Principal while this [matter] was in limbo.” Id.

In late October 2009, while the Commanding General's recommendation was pending, Bias reported to Stroman that Amite High School's Principal had been informed the school would need to reimburse MCJROTC for the cost of the Florida trip. AR at 58. Consistent with this explicit direction not to use MCJROTC operational funds to pay for the trip, the Principal approved an expenditure from the MCJROTC fundraising account, a separate account maintained by the school over which the MCJROTC program did not have direct control. Id.As a result, government funds were not expended on the Florida trip, but rather funds earned by MCJROTC cadets through fundraisers to support the program. See id.Stroman expressed a strong reaction to the Principal's choice for funding the Florida trip, stating that he viewed the action as grounds for “shutting this program down.” Id.Based on the Principal's action, Stroman appealed to McHenry in an email for “[a]ny sense of urgency we can get on decertification of the [plaintiff].” Id.

As a result of Stroman's investigation and recommendation, McHenry forwarded a final decertification package to TECOM, which would have resulted in the plaintiff's removal as an MCJROTC instructor. AR at 291. In January 2010, the Commanding General determined not to decertify the plaintiff and the plaintiff's “status as a certified instructor [was] to remain intact for the time being.” Id.Denied his request to decertify the plaintiff, Stroman proceeded to provide the plaintiff with a “Counseling Statement” on January 28, 2010, setting out certain requirements the plaintiff had to fulfill to remain certified. Id.

The counseling statement noted that the plaintiff had “been given an opportunity to retain [his] position,” but made clear that such retention was conditioned on meeting the following requirements: First, the plaintiff was “to perform [his] duties in a manner that is subordinate to that of the Senior...