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Colley v. James

United States District Court, District of Columbia

May 15, 2017

DEBORAH LEE JAMES Air Force Secretary,, Defendants.


          TANYA S. CHUTKAN United States District Judge.

         Pro 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.[1]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.[2] (Am. Compl. ¶¶ 194-96, 101-02, 203a, 222, 239a, 239c-239d, 242a).

         Before 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).[3] 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' motions.

         A. BACKGROUND

         Colley 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).[4]

         Although 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).

         As part 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).

         1. 2014 PROBATION

         Malcomb 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.)

         Despite 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.

         On 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).

         The day 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.

(AR 153).

         Although 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).

         On 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).

         Later 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).

         The 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).

         2. 2015 DECERTIFICATION

         On 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).

         On 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 162)

         Plaintiffs 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).

         Spring 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.”).

         On 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 decertification[]s.” (Id.) Colley claims that he “attempted to contact” Barron three days later, but was “unsuccessful.” (AR 6, Colley Decl. ¶ 29).

         On 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 158).

         As a 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” (AR 95, 97).[5] 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 id.)

         Plaintiffs 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).[6] 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).

         Two 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 [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 decertified.”
• 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.)


         Plaintiffs 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).


         Plaintiffs 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.

         A. Paperwork Reduction Act

         Plaintiffs 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 defined as:

“(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, [7]regardless of form or format, calling for either-
(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.

         Where 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)

         If a “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 process.

5 C.F.R. § 1320.6(d).

         Plaintiffs 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.

         Recognizing 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.

         First, Plaintiffs cite to the ROTC implementing statute, which provides:

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.

         Next 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.

         Although 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.

         Moreover, 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.

         In 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 not eliminated.

         William 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.

         B. Administrative Procedure Act

         The 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 case.”).

         1. Plaintiffs' APA Arguments

         Plaintiffs “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:

         a. Plaintiffs allege they complied with the operative AFM guidelines.

• 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 ...

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