United States District Court, D. Columbia.
For MICHAEL CROOKS, Plaintiff: John B. Wells, LAW OFFICES OF JOHN B. WELLS, Slidell, LA.
For RAYMOND EDWIN MABUS, JR., Secretary of the Navy, DEE MEWBOURNE, Rear ADM, USN, Naval Service Training Command, Defendants: Fred Elmore Haynes, LEAD ATTORNEY, 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 plaintiff, retired Marine Corps Major Michael Crooks, and the defendants, the Secretary of the Navy and Rear Admiral Dee Mewbourne of the U.S. Naval Service Training Command (" NSTC" ). Pl.'s Mot. Summ. J. (" Pl.'s Mot." ) at 1, ECF No. 23; Defs.' Mot. Summ J. (" Defs.' Mot." ) at 1, ECF No. 25. The plaintiff claims he was wrongfully decertified as an instructor in the Navy Junior Reserve Officers' Training Corps (" NJROTC" ) by the defendant, and seeks vacatur of that decision and reinstatement. See generally, Compl., ECF No. 1. For the reasons set forth below, the defendants' motion for summary judgment is granted and the plaintiff's motion is denied.
Instructors in the NJROTC program are employees of the school districts in which their units operate as well as responsible to the Navy. See Defs.' Mem. Supp. Defs.' Mot. (" Defs.' Mem." ) at 5, ECF No. 25. Although the instructors are actually school employees, they are only allowed to remain NJROTC instructors if they retain a valid certification issued by the Navy. See id. Thus, a brief summary of the statutory grounds for certification and decertification as an NJROTC instructor is provided before addressing the factual circumstances specific to this matter.
A. The NJROTC Program
Congress has mandated that " each military department . . . establish and maintain a Junior Reserve Officers' Training Corps . . . at public and private secondary educational institutions which apply for a unit and meet the standards and criteria prescribed" by law. 10 U.S.C. § 2031(a)(1). The Corps' purpose is " to instill in students . . . the values of citizenship, service to the United States, and personal responsibility and a sense of accomplishment." Id. § 2031(a)(2). The Secretary for each branch of service is mandated to (1) " detail officers and noncommissioned officers . . . as administrators and instructors," id. § 2031(c)(1); (2) " provide necessary text materials, equipment, and uniforms," id. § 2031(c)(2); and (3) " establish minimum acceptable standards for performance and achievement for qualified units," id. § 2031(c)(3). Each Secretary is further required to coordinate administration of the Corps in a " manner that is designed to maximize enrollment in the Corps and to enhance administrative efficiency in the management of the Corps." Id. § 2032(a). Regardless of branch of service, each JROTC instructor " must be certified by the Secretary" of that branch " as a qualified instructor in leadership, wellness and fitness, civics, and other courses related to the content of the program." Id. § 2033(a). Senior Military Instructors (" SMIs" ) must be " retired officers of the armed forces and . . . serve as instructional leaders who oversee the program." Id. § 2033(b)(1).
The specific regulations controlling NJROTC are contained in CNETINST 1533.9K, a 116-page document detailing everything from the organization of NJROTC units and the enrollment of students to information technology and marksmanship training. See generally CNETINST 1533.9K, " Regulations Governing Administration of the Naval Junior Reserve Officers Training Corps (NJROTC)" (" NJROTC Regs." ). The document lists five instances where certification of a NJROTC instructor " will be revoked:"
a. If the school dismisses the [instructor] or fails to renew the instructors [sic] contract for cause, b. If an instructor resigns without proper notice and without reasonable justification, c. If an instructor resigns while under investigation or to avoid investigation, or d. If an instructor resigns after being advised that their performance will be reviewed by an NJROTC Instructor Certification Board to consider continued certification, or e. Upon consideration of the conduct, performance, and evaluations of an [instructor] by the school and/or designated inspectors, CNET determines that continued certification of the instructor is not in the best interests of the program.
NJROTC Regs. § § 413(a)--413(e). " An instructor whose certification is revoked under any of the foregoing circumstances may request a review of their case by an NJROTC Instructor Certification Board . . . within 1 year after revocation of certification." Id. § 413(f). As this Court has held previously, " the subjective nature of decertification decisions . . . impart[s] considerable discretion upon the . . . Navy." Foster v. Mabus, 895 F.Supp.2d 135, 146 (D.D.C. 2012). With this context, the factual circumstances unique to this matter are related below.
B. The Plaintiff's Tenure And Decertification
The plaintiff, Michael Crooks, retired from the Marine Corps in 1994 as a Major " after 20 years of honorable service." Pl.'s Mem. Supp. Pl.'s Mot. (" Pl.'s Mem." ) at 1, ECF No. 23-2. Shortly before his retirement from active duty, the plaintiff was " certified by the Navy's Chief of Naval Education and Training [(" CNET" )] as a [NJROTC] instructor." Id. From August 1995 through January 2008, the plaintiff was employed as the SNI at Pearl River High School in St. Tammany Parish, Louisiana. Id. at 1-2. The plaintiff received generally positive evaluations, until the 2007-2008 school year. Administrative Record (" AR" ) at 8-26.
Beginning in the 2006-2007 school year, the record indicates that the relationship between the school administration and the plaintiff began to grow strained. See AR at 308. In an undated letter summarizing the plaintiff's 2006-2008 tenure at the school, sent to a NJROTC Certification Board, the Principal noted a " constant decline in the number of participants in the NJROTC program" that had been continuing " over the past years" and that the Principal believed threatened the continued viability of the program. Id. The Principal attributed the " primary cause" for the program's declining attendance to " the manner in which [the plaintiff] interfaced with cadets in the program." Id. In the Principal's view, the plaintiff acted " in the manner of a drill sergeant" by " on numerous occasions, verbally abus[ing] and berat[ing] cadets and non-cadets," such that the Principal felt the need to " counsel[ the plaintiff] about his attitude and confrontational manner." Id.
The Principal's letter goes on to note that the plaintiff's attitude and declining enrollment were not the only issues he had with the plaintiff. Id. at 309. In 2006-2007, the Principal averred that the plaintiff " did not turn in his lesson plans for August, September or October 2006" despite repeated requests and that " Cadets and their parents" alleged that the plaintiff " was not teaching the approved Navy curriculum but topics that he only had an apparent interest in, such as Suicidal Hand Wringing, Gay Marriage and Black Rednecks and White Liberals." Id.
The plaintiff disputes this claim, stating that his lesson plans were posted in the school's new computer system " in a timely manner based on the instructions he was provided" and that the curriculum taught by the plaintiff " is included in the Administrative Record." Pl.'s Opp'n Defs.' Mot. (" Pl.'s Opp'n" ) at 3, ECF No. 36 (citing AR 197, 257-266). In support of this contention, the plaintiff cites the results of a polygraph test administered to the plaintiff at the plaintiff's counsel's behest stating that the plaintiff asserted truthfully that he did not " intentionally misstate . . . that [his] lesson plans were posted on the school web site [sic] in a timely manner." AR at 196-97. The record contains a summary of the courses taught in the NJROTC program during the 2007-2008 school year, which makes no reference to the " Suicidal Hand Wringing" mentioned in the Principal's statement. See id. at 257-66. Nevertheless, the curriculum does state that Mondays are designated as " Current Events Day," id. at 258, and the Principal indicated in his letter that he viewed this teaching of Current Events as " unacceptable teaching" and ordered him " to cease teaching his eclectic 'current events' classes in lieu of the Navy curriculum," id. at 309.
Moreover, the Principal asserted that the plaintiff was leaving " students unattended in the classroom" and " leaving campus without receiving permission." Id. Combined with the alleged lack of lesson plans and " unacceptable teaching," the Principal initiated a " just cause" hearing in October 2006. Id. At the hearing, the Principal averred that the plaintiff " admitted he was wrong" as to all four of the Principal's allegations against him " and promised to correct his errors." Id. The plaintiff's employment continued following the " just cause" hearing, but " at the beginning of the 2007-2008 school year, the Assistant Principal and [the Principal] began to receive reports that [the plaintiff] was sleeping in class and again leaving his class unattended." Id.
The Principal stated that he and the Assistant Principal " closely monitor[ed] the plaintiff" for a week, beginning on October 15, 2007, just before an " Annual Inspection" of the NJROTC unit was conducted on October 18. Id. at 309-10. During this period, the Principal stated he and the Assistant Principal observed several incidents of the plaintiff being away from his classroom, sleeping in class, or otherwise failing to comply with his responsibilities as a school employee. Id. Along with the Principal's personal observations of the plaintiff, the Principal noted that the plaintiff had been reporting inaccurate enrollment figures to the Navy, thus concealing the fact that the unit had fewer than the required number of students to maintain the program. Id. at 310-11. Additionally, the Principal stated that he was informed by the plaintiff's superior that more than $2,000.00 was lost in potential reimbursement money from the Navy due to the plaintiff's " fail[ure] to utilize" a new reimbursement system on which the plaintiff had allegedly received training in 2006. Id. at 311. " This [failure] caused the ROTC parents and students to pay additional fees for ROTC activities." Id. Finally, the Principal stated that he did " not feel that [the plaintiff] will improve or that he will provide [the school with] the leadership necessary to be in charge of a successful NJROTC [unit] . . . in the future." Id.
During the October 18, 2007 inspection, the Principal informed the plaintiff's superior that the school " would be having a just cause hearing with [the plaintiff] . . . to discuss [his] failure to turn in lesson plans, falling asleep in class, leaving students unattended and other problems taking place." Id. at 310. On the same date, the Principal provided the plaintiff with an " NJROTC Instructor Observation Report" ranking the plaintiff " unsatisfactory" in thirteen of fourteen categories of evaluation. Id. at 7. The observation report contained handwritten comments from the Principal stating that he had " witnessed [the plaintiff] sleeping in class . . . . [leaving] his students unattended in class for more than half of the class period," failing to turn in lesson plans and " not follow[ing] ROTC curriculum." Id.
Less than a month later, the plaintiff's superior officer, Commander Merlin Ladner, provided the plaintiff with an evaluation ranking the plaintiff " Unsatisfactory" in five of six rating categories and " satisfactory" in one category. Id. at 6. The evaluation noted that the plaintiff did not meet the physical fitness requirements to maintain his certification because his height and weight combination fell outside the Navy's standards. Id. Ladner's evaluation further notes that the Principal had received " letters of complaint from cadets and cadets' parents about [the plaintiff's] performance and negative affect [sic] on the Unit." Id. Ladner concluded by stating he believed the plaintiff's documented " [d]eficiencies . . . are repairable however the Principal stated he has lost confidence in [the plaintiff's] ability to effectively manage the unit and is recommending to the Superintendent that he be dismissed." Id. Consequently, Ladner recommended that the plaintiff's " certification be revoked immediately per CNET Inst. 1533.9K, Article 404e(5) in that his continued certification is not in the best interests of the NJROTC program." Id.
The record contains the plaintiff's detailed rebuttal of Ladner's and the Principal's evaluations. AR at 42-47. The plaintiff asserted that the Principal did not make any formal observation of the plaintiff, id. at 42, and the alleged sleeping incident was caused by the plaintiff's temporary prescription medication, id. at 44. He contended that when his students were left unattended, they had been under the supervision of another instructor and he was unaware that instructor had " allowed them to return to the classroom unsupervised." Id. He asserted that he was unable to submit lesson plans via the school's online system until it became operational in October and his " lesson plans were posted" at a time when only " thirty-two out of sixty-one teachers" had managed to upload their plans. Id. Noting that the other NJROTC instructor had not submitted any lesson plans, the plaintiff asserted that he felt " singled out" by the Principal. Id.
In defense of his curriculum, the plaintiff noted that " [o]ne of the goals of [the] NJROTC curriculum is to promote a healthy lifestyle," and to further that goal the plaintiff " discussed during [the] health portion of the classes . . . energy drinks, use of sun screens, proper use of prescription medications, personal image, and how [cadets] are seen by others." Id. The plaintiff contended that these topics were taught and tested " to help improve [the cadets'] overall physical health," " followed the guidelines for the NJROTC syllabus," and " were ...