United States District Court, D. Columbia.
For CARL FOSTER, Plaintiff: John B. Wells, LEAD ATTORNEY, LAW OFFICES OF JOHN B. WELLS, Slidell, LA.
For RAYMOND EDWIN MABUS, JR., Secretary of the Navy, JAMES W. LUKEMAN, MGEN, USMC, Defendants: Rhonda Lisa Campbell, LEAD ATTORNEY, Andrea McBarnette, U.S. ATTORNEY'S OFFICE, Washington, DC.
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. See Foster 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.
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 I did 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 I procedural history.
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. See 10 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. Prior 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. See AR 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?" ). As 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. AR 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 Marine Instructor." Id. The statement acknowledged that the plaintiff was " an employee of the school," but noted that his " position as the Marine Instructor is subordinate to that of the Senior Marine Instructor." Id. Second, the plaintiff was " no longer authorized to hold any position of authority that would allow [him] to make decisions concerning, or handle" MCJROTC funds. Id. " Any purchase request documents (PRDs) submitted from Amite MCJROTC" were to " be signed or initialed by the SMI." Id. Moreover, the plaintiff was stripped of his duties as " Responsible Officer" and " Military Property Custodian." Id. Third, the plaintiff was ordered to " resign from any position at the school that is not directly related to [his] responsibilities as the Marine Instructor for MCJROTC." Id. at 291-92. The statement specified that such resignations " would include any coaching responsibilities other than those directly related to that of the MCJROTC Drill teams or Color Guard teams." Id. at 292. Finally, the statement required the plaintiff to " continue to perform all extra duties that are required of all teachers at Amite High School."  Id.
In addition to these retention conditions, and despite the fact that TECOM's Commanding General declined to decertify the plaintiff, Stroman included punishing language in the counseling statement that the plaintiff's participation in the Florida trip was " done with full knowledge that [the plaintiff's] actions were both criminal and inappropriate." Id. As if being accused of " criminal" conduct were not enough, the counseling statement went on to chastise the plaintiff, stating that his " inability to demonstrate the Marine Corps Core values of honor, courage and commitment ha[d] been brought to the forefront as a result of [his] actions." Id. The plaintiff was cautioned that his " ability to set the appropriate example for the cadets [was] in serious question." Id. Finally, the plaintiff was told that Stroman 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. In accordance with the counseling statement, Bias provided the school principal, school purchasing agent, and the plaintiff with a memorandum stating that " any and all expenditures from MCJROTC accounts (Federal and Fundraising) require the signature of" Bias and that " [e]xpenditures not approved by [Bias] shall not receive funding from MCJROTC accounts." AR at 290.
The next month, on February 22, 2010, the Amite Principal told the plaintiff that he " need[ed]" the plaintiff " to set up the concession stand for" a basketball game that Friday night, AR at 242, with the funds to benefit the school's weightlifting program, id. at 237. The plaintiff initially demurred, id. at 242, but eventually agreed to " provide support outside of any ties with the JROTC Program" at the Principal's request, id. at 240. Given the obvious difficulties in reconciling the third and fourth requirements in the strongly-worded counseling statement, see supra n. 5, the plaintiff prudently " informed [Bias] of the request" prior to agreeing to help the Principal. AR at 237.
Part of running a concession stand at the school involved filling out and submitting a purchase order for supplies. See id. The plaintiff had previously planned to run a concession stand earlier in February to benefit MCJROTC, but was unable to attend that event at the last minute. Id.; see id. at 244. The plaintiff had already prepared a purchase order for that event, dated February 9, 2010, listing JROTC as the account to be used, and merely altered the quantities on this purchase order to support the Principal's request. Id. at 237; id. at 243 (Purchase Order, dated February 9, 2010, with four quantities scratched out and replaced with different numbers). That Purchase Order was signed by the Principal and submitted for payment to the school's new bookkeeper. See id. at 237-38. According to the plaintiff, the signature on a school purchase order " identifies the sponsored account to be debited." Id. at 238. According to the Principal, the bookkeeper, who was new to her role, " took the funds out of [the] MCJROTC" account, in the amount of $197.50, instead of the school's general fund, which was the account authorized by the Principal's signature. Id. at 295. Indeed, the memorandum accompanying the counseling statement given to the plaintiff and provided to the school's purchasing agent made clear that only the Senior Marine Instructor, Bias, could authorize expenditures from the MCJROTC account, and a purchase order not signed by Bias could not be used to disburse MCJROTC funds. Id. at 290.
In April 2010, during a review of the MCJROTC program's quarterly account statement, Bias noted the $197.50 debit to the program's funds and immediately notified Stroman, without seeking clarification from the Principal. AR at 151. Bias and Stroman viewed the expenditure as a " clear violation" of the plaintiff's counseling statement. Id. Stroman notified McHenry, who told Stroman " to travel to Amite and to have a meeting with the Superintendent and the Director of HR in order to bring an end to this nonsensical conduct." Id.
After hearing of the debit to the MCJROTC account, the Principal " immediately replaced the $197.50 in the MCJROTC activity account . . . and sent a letter to the Superintendent . . . not[ing] that the reason the $197.50 was removed from the cadet account was because of a clerical error." Id. Stroman rejected the Principal's explanation, stating that " it was not a clerical error, but an error on the part of MSgt Foster to request the money out of the cadet account and a clear violation of the directives given to him by the SMI and the Regional Director." Id. Notably, neither the Principal nor Stroman referenced the discrepancy between the Principal's emailed request to the plaintiff to run the concession stand, on February 22, 2010, id. at 242, and the date on the purchase order of February 9, 2010, id. at 243, which discrepancy only corroborated the plaintiff's version of how the error occurred.
During Stroman's meeting with the school superintendent, Stroman opined that the plaintiff would respond to directions from Bias " to accomplish a task, [the plaintiff] would comment that it was not directed in the counseling letter" provided to the plaintiff. Id. at 151; see also supra note 5. Stroman advised the Superintendent that the plaintiff " was the source of the problem and would probably need to be removed from the program." Id. Stroman " recommended that [he] mediate a meeting the next day and see if [he] could get [Bias] and [the plaintiff] on working ...