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Carl Foster, Plaintiff v. Ray Mabus

September 29, 2012

CARL FOSTER, PLAINTIFF,
v.
RAY MABUS, SECRETARY OF THE NAVY, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Judge Beryl A. Howell

MEMORANDUM OPINION

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"), 5 U.S.C. § 702 et seq., seeking injunctive relief. The plaintiff is a former instructor in the Marine Corps Junior Reserve Officer Training Corps ("MCJROTC") and the Navy Junior Reserve Officer Training Corp ("NJROTC") but was decertified as an instructor following allegations of misconduct. The plaintiff seeks vacatur of these decertification actions and reinstatement of his certification as an instructor in both the MCJROTC and NJROTC programs.

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 10 U.S.C. § 2031. In the Navy, the program is known as the NJROTC, and in the Marine Corps the program is known as the MCJROTC. Compl. ¶ 7; Def.'s Statement of Material Facts as to Which There Is No Genuine Dispute ("Def.'s SMF") ¶ 2, ECF No. 8. The plaintiff was hired to be an MCJROTC instructor at Amite High School in Amite, Louisiana in December 1999. Id. ¶ 9; Def.'s SMF ¶ 4.*fn1 The Marine Corps recertified the plaintiff as an MCJROTC instructor twice more, in 2003 and 2007 (each for a period of four years), and he continued as an instructor at Amite High School throughout this time. AR at 113, 123. On April 17, 2010, the NJROTC certified the plaintiff as a Naval Science Instructor for a period of three years. Id. at 217.

A.First Decertification Proceeding

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 Education Command ("TECOM"), who is the Marine Corps officer responsible for final adjudication of decertification decisions. Id. at 323. Based upon Lt. Col. Strohman's report and the plaintiff's written statement, Dr. McHenry recommended that the plaintiff be immediately decertified, stating that the plaintiff "ha[d] brought discredit upon himself and the established MCJROTC Unit at Amite High School by . . . [attempting] to defraud the government by submitting . . . two [PRD's] totaling $2656.45." Id. at 323.

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 "JROTC" written in account line even though both the plaintiff and Principal Stant understood that the funds were to be debited from the school's general fund account. Id. at 356-- 57, 362. The purchase order for $197.57 was signed by Principal Stant, and the funds were consequently ...


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