United States District Court, District of Columbia
EDWARD A. COLLEY and FREDERICK D. MALCOMB, JR., Plaintiffs,
DEBORAH LEE JAMES Air Force Secretary,, Defendants.
S. CHUTKAN United States District Judge.
se plaintiffs Edward A. Colley and Frederick D. Malcomb,
Jr. are retired Air Force officers who were instructors in an
Air Force Junior Reserve Officer Training Corps
(“AFJROTC”) unit. The Air Force decertified
Plaintiffs as AFJROTC instructors after it found that they
failed to timely submit certain records. Plaintiffs
unsuccessfully challenged the decision through an Air Force
administrative process and subsequently filed this lawsuit
against the Air Force and the two individual decision makers,
seeking reversal of the decertification.Plaintiffs bring
claims under the Administrative Procedure Act, 5 U.S.C.
§ 551 et seq.; the Privacy Act, 5 U.S.C. §
552a; the Federal Tort Claims Act, 28 U.S.C. § 2671
et seq.; the Paperwork Reduction Act, 44 U.S.C.
§ 3501 et seq. and the Due Process clause of
the Fifth and Fourteenth Amendments of the United States
Constitution. (Am. Compl. ¶¶ 194-96, 101-02,
203a, 222, 239a, 239c-239d, 242a).
the court are the following motions: (1) Defendants'
Motion to Dismiss or, in the Alternative, for Summary
Judgment or to Transfer Venue (ECF No. 6); (2)
Plaintiffs' Motion for Preliminary Injunction (ECF No.
16); (3) Plaintiffs' Motion for Preliminary Injunction
and Request for a Hearing (ECF No. 20); and (4)
Plaintiffs' Motion for Telephone Status Conference (ECF
No. 23). For the reasons set forth below, the court
will GRANT Defendants' motion to transfer this action to
the Central District of California and DENY Plaintiffs'
and Malcomb were employed by the Hart School District in
Valencia, California as JROTC instructors. (Am. Compl.
¶¶ 19, 23-24). Pursuant to federal law, all JROTC
instructors “must be certified by the Secretary”
of that branch “as a qualified instructor” in
areas such as leadership, civics and ROTC related topics. 10
U.S.C. § 2033(a). The Secretary for each branch of the
military is responsible for “establish[ing] minimum
acceptable standards for performance and achievement for
qualified [ROTC] units.” 10 U.S.C. §
2031(c)(1)-(3). Consistent with this authority, the Secretary
of the Air Force publishes AFJROTC “Instructions”
that cover management of the ROTC units.
“COMPLIANCE WITH THIS PUBLICATION IS
MANDATORY” appears in bold near the top of
those instructions. (AR 321, AFJROTC 36-2002; AR 275, AFJROTC
36-2001; AR 177, AFJROTC 36-2001).
Plaintiffs are not Air Force employees, the Air Force
reimburses the school district for part of Plaintiffs'
instructor salaries. (See Am. Compl. ¶ 15). Air
Force ROTC instructors must: (1) “meet the criteria
established by appropriate instructions and meet
certification . . . requirements to perform instructor
duty”; and (2) “meet and maintain school and Air
Force requirements and standards.” (AR 331, AFJROTC
36-2002, ¶ 2.1.1; AR 339, AFJROTC 36-2002, ¶ 4.4).
The Air Force's “Holm Center” or
“Headquarters” (“HQ”) manages
instructor compliance and may decertify instructors
“for cause.” (AR 331, AFJROTC 36-2002 ¶
2.1.2; AR 332, AFJROTC 36-2002 ¶ 2.2.2; AR 335-36,
AFJROTC 36-2002, ¶ 3.1.1).
of the ROTC program, the Plaintiffs used school equipment, as
well as the Air Force's “Automated Data Processing
Equipment (ADPE).” (Am. Compl. ¶ 27). Plaintiffs
admit that “[t]he Air Force requires accountability and
safekeeping” of the ADPE. (Id. ¶ 28).
Specifically, instructors must “conduct an annual AIM
Inventory, ” which includes accounting for all
computers, projectors, and digital cameras. (AR 206, AFJROTC
36-2001 (9/8/10) ¶ 13.4.5; AR 284, AFJROTC 36-2001
(5/28/14) ¶ 4.3.1).
claims that in January 2014, he sent the unit's AIM
inventory to Amy Frasier, the Equipment Control Officer
(“ECO”), via facsimile and email, after which he
telephoned her to confirm receipt. (AR 385-86, Malcomb Decl.
¶ 8; see AR 414). Several months later, on
March 7, 2014, the AFJROTC Director sent an email to all
units with a subject line that included “Annual IT
equipment account compliance” and an April 10, 2014
deadline. (AR 149). The email explained that ADPE
accountability was an Air Force requirement that had to be
completed by the deadline. (Id.) The email also
indicated that each unit was required to submit four
documents in order to be considered “compliant”:
(1) an equipment custodian appointment letter; (2) training
certificates (one for each instructor); and (3) an AIM
inventory. (Id.) The email further explained that a
new submission process had been created in WINGS-a
computerized software program-and instead of emailing or
faxing their ADPE documents, all units had to upload
documents to WINGS. (Id.)
this, Malcomb asserts that he took no additional action
because he had faxed and emailed the inventory on January 20,
and the March 7 email did not state that Plaintiffs were not
in compliance. (AR 414; AR 385-87 Malcomb Decl. ¶¶
8, 24; Am. Compl. ¶¶ 51, 55-56). Plaintiffs also
claim they did not believe the email applied to them because
they had already complied with the inventory submission
deadlines found in Air Force Manual provision 33-153
(“AFM 33-153”). (AR 4, Colley Dec. ¶ 12; AR
386, Malcomb Decl. ¶ 12). As the court will discuss
below, AFM 33-153 apparently contained more general
guidelines about ADPE accountability than did the AFJROTC
instructions and the emails from HQ.
April 7, three days before the deadline, the AFJROTC Region 4
Director emailed Plaintiffs and other units explaining that
WINGS showed their units had not started their ADPE
accountability, despite prior warnings that the April 10
deadline “was extremely important!” (AR 151). The
units were warned that they should start the ADPE
accountability process in order to “avoid any possible
negative impacts.” (Id.) It is undisputed that
Plaintiffs were on spring break when the email was sent. (Am.
Compl. ¶ 58).
after the deadline, April 11, the AFJROTC Director sent
noncompliant units, including Plaintiffs', an email with
the subject line: “ADPE Missed
Suspense.” (AR 153) (emphasis in original).
The email stated:
On 7 Mar we notified you of an AF level requirement to
account for all AF owned ADPE. You were given a suspense of
10 April to complete your inventory and update it in WINGS.
As of today, 11 April, this requirement has not been
completed for your ADPE account. . . .
If you have not completed the suspense by 18 Apr, both
instructors at your unit will be placed on probation until
the unit's ADPE account is fully compliant. If you fail
to bring the ADPE account within compliance by 30 Apr, both
instructors will be considered for decertification.
Plaintiffs were on spring break on April 11, the break ended
on April 15, and both Plaintiffs saw the email upon their
return. (See Am. Compl ¶ 58). Even though the
email explicitly stated the recipient units were
non-compliant, both Plaintiffs claim that, once again, they
did not believe their unit was out of compliance because they
had faxed and emailed the equipment inventory in January. (AR
4, Colley Decl. ¶ 14; AR 386, Malcomb Decl. ¶ 14).
April 22, the Air Force placed both Plaintiffs on probation.
(AR 155; Am. Compl. ¶ 61). In his email to the school
principal and Plaintiffs informing them of the suspension,
the Director noted that “[a]ccounting for ADPE is a
strict Air Force compliance requirement. This is an annual
recurring requirement.” (AR 155). Finally, he warned:
“If the instructors fail to bring the ADPE account
within compliance by April 30, 2014, [HQ] will initiate
decertification actions for both instructors.”
(Id. . 156).
that day, Malcomb emailed the Director, indicating that
because the unit had previously sent the AIM inventory to ECO
Frasier, he had thought his unit was “ahead of the
game, ” but that he intended to submit another
inventory. (AR 414). Malcomb also mentioned his
“confusion on what documents were needed” and his
discussions with Frasier about “how to upload [the
documents] into WINGS.” (See id) Plaintiffs
entered all of the required documents before the April 30
deadline and the Air Force subsequently removed them from
probation. (AR 158).
following month, the Director published a new set of
instructions requiring that the units use WINGS to account
for ADPE. (AR 275; AR 284, AFJROTC 36-2001 (5/28/14) ¶
4.2.1). The instructions also required that instructors log
into WINGS and the instructors' AFJROTC email account
daily in order to remain current on all policies. (AR 299,
AFJROTC 36-2001 (5/28/14) ¶ 7.2, ¶ 7.2.1).
March 14, 2015, the Regional Director sent an email to the
units providing instructions on how to determine whether they
had complied with the ADPE requirements. (AR 160). Again,
Plaintiffs contend that they believed the email did not apply
to them because they were purportedly in compliance with AFM
33-153. (AR 5, Colley Decl. ¶ 24; AR 387, Malcomb Decl.
¶ 24). Plaintiffs also contend that the email was
unclear because it was labeled as a
“‘reminder' with no reference to what it
purported to remind [Plaintiffs] of.” (ECF No. 10, Pls.
Mot. to Dismiss SOF Response # 51) (hereinafter “Pls.
SOF Resp.”). Although Plaintiffs admit Malcomb's
email account was functioning, they defend their conduct in
part by contending that Colley's email account was
“inactive or closed” at this time. (Id.)
(citing AR 506); ECF No. 22, Pls. Reply p. 12).
April 6, 2015, the AFJROTC Deputy Director sent an email to
all units about the annual inventory “suspense”
date of April 10, reminding them that the annual equipment
inventory “ha[d] Air Force Level interest.” (AR
allege they were on spring break at the time the email was
sent, and that Colley's email was deactivated. (Am Compl.
¶ 90; Pls. SOF Resp. #52) (citing AR 506). Although
Plaintiffs admit there were no problems with Malcomb's
email account, they claim he also did not receive the email.
(ECF No. 22, Pls. Reply p. 12; Pls. SOF Resp. #52;
see Am. Compl. ¶¶ 88-89, 95). They argue
that even if they had received the email, they still were not
on notice about the April 10 suspense date because, in their
view, the suspense date conflicted with the published
suspense date found in the recently published instruction,
AFJROTC 36-2001 (5/28/14), which provided for submission of
inventories between January 1 and April 30. (Pls. SOF Resp.
#52; AR 284, AFJROTC 36-2001 (5/28/14) ¶ 4.3.1).
break ended on April 12, 2015. (Am. Compl. ¶ 90). On
April 17, the AFJROTC Director sent the units, including
Plaintiffs', an email with the subject line in bold
indicating a “missed suspense.” (AR 165). The
email informed all recipients that their unit had missed the
suspense date and warned that if they did not comply by April
24, 2015, they would “certainly be placed on
probation” and “considered for
Decertification.” (Id.) Recipients were asked
to contact the Regional Director if they had already
completed their ADPE requirements. (AR 165-66). Even though
the Director sent the email to what appears to be
Plaintiffs' unit email address, Plaintiffs assert they
did not receive the email at the time it was sent. (Pls. SOF
Resp. #53; see Am. Compl. ¶¶ 91-95; ECF
No. 20, Pls. Second Preliminary Injunction Br. p. 8)
(hereinafter “Pls. PI Br.”).
April 24, 2015, Plaintiffs received an email from AFJROTC
Region 4 Director, Wayne Barron, stating that their unit had
not started its ADPE compliance and asking them to call his
cell phone number. (See AR 168; Am. Compl. ¶
97; AR 5-6 Colley Decl. ¶¶ 25, 28). Barron attached
an email he had received from the AFJROTC Director, who
warned “[t]oday is the last day to complete the
suspense before probation and the AF suspense of 30 April
(next Thursday) could generate some
decertifications.” (Id.) Colley claims that
he “attempted to contact” Barron three days
later, but was “unsuccessful.” (AR 6, Colley
Decl. ¶ 29).
April 28, 2015, Plaintiffs uploaded their signed AIM
inventory and equipment custodian appointment letter to
WINGS. (AR 158; Am. Compl. ¶ 99). On May 7, 2015,
Plaintiffs uploaded both of their training certificates. (AR
result of their late submission of the training certificates,
on May 18, 2015, Plaintiffs received a memorandum from
AFJROTC Director Woods informing them that they would be
“Decertified for Unsatisfactory Instructor
Performance” effective the end of the academic year.
(AR 95, 97). Woods noted that Plaintiffs had been placed on
probation the previous year for failing to timely complete
the ADPE suspense, “despite personal direction and
phone calls from [the] Regional Director.” (AR 95, 97).
He concluded that Plaintiffs' continued inability to
comply with AFJROTC requirements was a clear indicator of
unsatisfactory performance and therefore justified
decertification for failing to “meet the standards
expected of an Air Force officer and an Air Force Junior ROTC
instructor per AFJROTC 36-2002, paragraph 184.108.40.206.5.”
(AR 95, 97). Finally, Woods explained that Plaintiffs
could appeal pursuant to AFJROTC 36- 2002 Section 4.7.2,
which allows for an appeal filed within 15 days of
notification regarding the decertification. (See
filed timely administrative appeals, admitting that they had
submitted their training certifications on May 7, but arguing
that they had not violated the applicable submission
requirements. Specifically, Plaintiffs argued that they had
complied with AFM 33-153, which they contend does not require
submission of training certificates. (AR 118-19,
121). Moreover, Plaintiffs asserted that AFM
33-153 does not impose an April 30 deadline, but instead
requires that units perform an annual equipment inventory no
later than 365 calendar days “from the date the
commander signed the current inventory listing.” (AR
118-20). Relying on AFM 33-153, Plaintiffs argued that they
never failed to meet any mandatory deadlines. Additionally,
despite the explicit warnings in the emails about possible
decertification, both Plaintiffs asserted that they
“reasonably believed” the most serious sanction
they faced for late ADPE submission was a frozen account and
an opportunity to correct any deficiencies. (AR 124, 137).
days after Plaintiffs submitted their appeals, the
decertifications became effective. The following month, on
June 30, 2015, AFJROTC Vice Commander Hoffman upheld the
decertifications, finding that:
• Plaintiffs were decertified for failing to meet
“the standards expected of an Air Force officer and an
Air Force Junior ROTC instructor per AFJROTC136-2002, para
220.127.116.11.5 [the same provision cited by Woods], specifically
for not complying with the AFJROTC requirements by failing to
meet the ADPE suspense two years in a row despite being
reminded by HQ AFJROTC.”
• Plaintiffs were required to comply with both the AFM
and AFJROTC instructions, and that the latter may be more
restrictive than the AFM. Thus, Hoffman rejected the
Plaintiffs' argument that they met their obligations
because they complied with AFM 33-153.
• Although Plaintiffs had “substantially
compl[ied] with HQ directives in general, ” they had
failed to “comply with a specific and clear HQ AFJROTC
direction two years in a row. Other instructors who have
failed to meet consecutive ADPE suspenses have been similarly
• Plaintiffs were warned about potential decertification
in both 2014 and 2015.
(AR 143-44, 146-47). Hoffman noted that it was not in the
best interest of the Air Force to expend numerous hours
sending multiple emails continually reminding instructors of
their responsibilities. (Id.)
MOTION FOR PRELIMINARY INJUNCTION
ask the court to grant a preliminary injunction requiring the
Air Force to set aside their decertifications. Injunctive
relief is an “extraordinary and drastic remedy”
that is “never awarded as of right.” Munaf v.
Geren, 553 U.S. 674, 689-90 (2008) (quotation and
citations omitted). Accordingly, “the decision whether
to grant a preliminary injunction is a matter of discretion
” Sherley v. Sebelius, 644 F.3d 388, 398 (D.C.
Cir. 2011) (citation omitted). Preliminary injunctions
“should be granted only when the party seeking the
relief, by a clear showing, carries the burden of
persuasion.” Cobell v. Norton, 391 F.3d 251,
258 (D.C. Cir. 2004) (citation omitted). The moving party
must demonstrate: (i) a substantial likelihood of success on
the merits; (ii) that he or she would suffer irreparable
injury absent the requested injunctive relief; (iii) that the
balance of equities tips in his or her favor; and (iv) that
the public interest would be furthered by the requested
injunctive relief. See Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008).
LIKELIHOOD OF SUCCESS ON THE MERITS
argue they are likely to succeed on the merits because they
are innocent and because the Air Force violated federal law
by revoking their AFJROTC certifications. The court disagrees
and addresses Plaintiffs' claims and arguments below.
Paperwork Reduction Act
argue that the decertifications were invalid because the Air
Force's ADPE accounting requirements violated the
Paperwork Reduction Act (“PRA”), 44 U.S.C. §
3501, et seq. The PRA “prohibits any
federal agency from adopting regulations which impose
paperwork requirements on the public unless the information
is not available to the agency from another source within the
Federal Government . . . .” Dole v. United
Steelworkers of Am., 494 U.S. 26, 32 (1990). The statute
describes these paperwork requirements as a “collection
of information” 44 U.S.C. § 3501(1), which is
“(A) means the obtaining, causing to be obtained,
soliciting, or requiring the disclosure to third parties or
the public, of facts or opinions by or for an agency,
regardless of form or format, calling for
(i) answers to identical questions posed to,
or identical reporting or recordkeeping requirements imposed
on, ten or more persons, other than agencies,
instrumentalities, or employees of the United States; or
(ii) answers to questions posed to agencies,
instrumentalities, or employees of the United States
which are to be used for general statistical purposes . . .
44 U.S.C. § 3502(3) (emphasis added). Thus, only under
special circumstances does the PRA limit the collection of
information from U.S. government employees.
an agency seeks a “collection of information” as
defined by the PRA, the agency “must submit [its]
collection plan to OMB [Office of Management and
Budget].'” CTIA-The Wireless Ass'n v.
F.C.C., 530 F.3d 984, 987 (D.C. Cir. 2008) (citing 44
U.S.C. § 3507(e)(1)). If OMB approves the plan, it
issues a control number for the information collection
request. See United States v. Ionia Mgmt. S.A., 498
F.Supp.2d 477, 488 (D. Conn. 2007)
“collection of information” has not been approved
by the OMB, “no person shall be subject to any penalty
for failing to comply” with the information request. 44
U.S.C. § 3512(a). The statute defines a
“penalty” to include “the imposition by an
agency or court of a fine or other punishment; . . . [or the]
suspension, reduction, or denial of a license, privilege,
right, grant, or benefit.” 44 U.S.C. § 3502(14).
As Plaintiffs point out, in addition to these statutory
restrictions, the regulations further provide:
Whenever a member of the public is protected from imposition
of a penalty under this section for failure to comply with a
collection of information, such penalty may not be imposed by
an agency directly, by an agency through judicial process, or
by any other person through administrative or judicial
5 C.F.R. § 1320.6(d).
argue that because the AFJROTC instructions and emails from
HQ did not contain OMB control numbers, the Air Force's
requests for the training certifications and its deadlines
violated the PRA, and that Plaintiffs were not obligated to
submit the requested documents. Consequently, the Air Force
cannot penalize them by suspending their certifications for
failing to do so.
that the PRA only limits the collection of information from
“employees of the United States” in certain
instances, Plaintiffs contend they are not government
employees. Because the statute does not define the term,
Plaintiffs cite to several other sources in support of their
position-none of which are compelling.
Plaintiffs cite to the ROTC implementing statute, which
Notwithstanding any other provision of law, a member employed
by a qualified institution pursuant to an authorization under
this subsection is not, while so employed, considered to be
on active duty or inactive duty training for any purpose.
10 U.S.C.A. § 2031(e)(5). They also cite to the contract
between the school and the AFJROTC, which provides that they
are employees of the school district, rather than Air Force
employees. (Pls. PI Br. p. 12). However, neither the ROTC
implementing statute nor the school contract addresses
whether an ROTC instructor is considered a government
employee for purposes of the PRA. Thus, Plaintiffs'
reliance on these two provisions is misplaced.
Plaintiffs cite to Cavazos v. United States, 776
F.2d 1263, 1264 (5th Cir. 1985), which involved the question
of whether the government may be held liable for the
negligence of JROTC instructors under the Federal Tort Claims
Act (“FTCA'). That case is not applicable to the
facts or issues here, and therefore does not provide any
useful guidance on what constitutes a government employee for
purposes of the PRA.
Plaintiffs are not government employees in a literal sense,
the court remains unpersuaded that they can seek refuge in
the PRA, given the unique facts of this case. The Supreme
Court has described the PRA as limiting the collection of
data from “the public.” Dole, 494 U.S.
at 32; see also 5 C.F.R. § 1320.6(d)
(protecting the “public” from penalties
associated with failing to comply with a data collection
request) (emphasis added). In this case, however, the
requested information was not sought from the
“public.” The Air Force is responsible for
certifying Plaintiffs in their roles as JROTC instructors,
who in turn must follow JROTC directives. (AR 331, AFJROTC
36-2002, ¶ 2.1.1; AR 339, AFJROTC 36-2002, ¶ 4.4).
Additionally, the Air Force requires that the units provide
military instruction, 10 U.S.C. § 2031(b)(3), and in
furtherance of that instruction, the Air Force provides
certain equipment, which instructors are required to document
and maintain. While the Air Force does not compensate
Plaintiffs directly, it compensates them indirectly because
it reimburses the school district for a portion of their
salaries. (Am. Compl. ¶ 15). Thus, even though they are
not technically government employees, Plaintiffs'
salaries are partially subsidized by the government, they are
caretakers of government property, and they are subject to
governmental laws and regulations. As such, they are more
akin to government employees than members of the public.
as the Supreme Court has explained, the PRA limits the
collection of information from the public when the
information sought is available from another source within
the Federal Government. See Dole, 494 U.S. at 32,
38. Here, there is no evidence that the AIM Inventory and
training certifications are available from another source
within the federal government, and a ruling in favor of
Plaintiffs would jeopardize the federal government's
ability to maintain and account for public property.
enacting the PRA,
Congress attempted to create a legislative scheme and
administrative procedures by which unnecessary and burdensome
paperwork requirements would be substantially diminished, if
F. Funk, The Paperwork Reduction Act: Paperwork Reduction
Meets Administrative Law, 24 Harv. J. on Legis. 1, 4
(1987). The documents and information sought by the Air Force
in this case can hardly be described as burdensome or
unnecessary. Accordingly, Plaintiffs are unlikely to succeed
on the merits of their PRA claim.
Administrative Procedure Act
court reviews the Air Force's decertification decision
under Section 706 of the Administrative Procedure Act
(“APA”). See 5 U.S.C. § 706.
Pursuant to the APA, a court must set aside agency action
that is “arbitrary, capricious, an abuse of discretion,
” “otherwise not in accordance with law”
“in excess of statutory authority, ” or
“without observance of procedures] required by
law.” 5 U.S.C. § 706(2)(A), (C)-(D). The
court's review is “highly deferential” and
begins with a presumption that the agency's actions are
valid. Envtl Def Fund v. Costle, 657 F.2d 275, 283
(D.C. Cir. 1981). “In exercising its narrowly defined
duty under the APA, a court must consider whether the agency
acted within the scope of its legal authority, whether the
agency adequately explained its decision, whether the agency
based its decision on facts in the record, and whether the
agency considered the relevant factors.” Defenders
of Wildlife v. Babbitt, 958 F.Supp. 670, 679 (D.D.C.
1997) (some citations omitted) (citing Marsh v.
Oregon Natural Res. Council, 490 U.S. 360, 378 (1989));
see Spadone v. McHugh, 864 F.Supp.2d 181, 187
(D.D.C. 2012) (citation omitted) (“A decision is
arbitrary or capricious under the APA if an agency failed to
provide a reasoned explanation, failed to address reasonable
arguments, or failed to consider an important aspect of the
Plaintiffs' APA Arguments
“bear the burden of establishing the invalidity of the
agency's action.” Magneson v. Mabus, 85
F.Supp.3d 221, 225 (D.D.C. 2015). Set forth below are the
Plaintiffs' APA arguments, along with the court's
analysis of each argument:
Plaintiffs allege they complied with the operative AFM
• Plaintiffs argue they complied with AFM 33-153, which
requires submission of an AIM Inventory once every 365 days
and annual certification of training, but does not require
submission of training certificates. (Pls. PI SOF # 6).
Therefore, their upload of the 2015 training certificates, on
May 7 ...