MEMORANDUM OPINION
Emmet
G. Sullivan United States District Judge
Plaintiff
Derek Iaccarino, a former Federal Protective Service
employee, brings this action against Elaine Duke, Acting
Secretary of the Department of Homeland Security
(“DHS”), and two employees of the Federal Law
Enforcement Training Center (“FLETC”) under the
Administrative Procedure Act, 5 U.S.C. § 701, et
seq. Mr. Iaccarino challenges FLETC's finding that
he engaged in misconduct and its decision to expel him after
Mr. Iaccarino was arrested by FLETC security guards for
failure to produce his identification. He seeks, inter
alia, vacatur of that decision and remand to DHS for a
new final agency decision consistent with a less severe
punishment. Compl., ECF No. 1 ¶¶ 62-63. The parties
have filed cross-motions for summary judgment and this matter
is ripe for decision. See Defs.' Mot. Summ. J.
(“Defs.' Mot.”), ECF No. 18; Pl.'s
Cross-Mot. ECF No. 19. The Court finds that although DHS
adequately explained its finding of Mr. Iaccarino's
misconduct, it failed to explain why expulsion was the
appropriate sanction for that misconduct. The Court therefore
GRANTS IN PART and DENIES IN
PART both Mr. Iaccarino's and the
defendants' Cross-Motions for Summary Judgment. Further,
the Court REMANDS the matter to DHS for
further proceedings consistent with this Memorandum Opinion.
I.
Background
This
dispute arises out of an altercation that occurred while Mr.
Iaccarino was a trainee at FLETC's Physical Security
Training Program (“training program”). Compl.,
ECF No. 1 ¶ 13. At that time, Mr. Iaccarino was employed
as a Law Enforcement Specialist within the Federal Protective
Service of the National Protection and Programs Directorate,
Department of Homeland Security (“DHS”) and
enrolled in the training program at FLETC as part of his
employment. Id. ¶¶ 7, 13. The training
program ran from July 2016 through January 31, 2017.
Id. ¶ 13. Mr. Iaccarino was scheduled to
graduate from the training program on January 31, 2017, but,
ten days earlier, he was involved in an incident with other
students and several security guards. Id.
¶¶ 15-16, 47-48. On graduation day, Mr. Iaccarino
was informed he was permanently expelled from FLETC;
effectively ending his career in federal law enforcement.
Id. ¶ 48
A. The Incident
In the
early morning hours of January 21, 2017, Mr. Iaccarino, and
three other trainees, Heather Chaney, Carlos Castillo, and
Joshua Wood, were on the balcony of one of FLETC's
buildings drinking, smoking cigarettes, and listening to
music playing from a nearby room. Administrative Record
(“AR”) at 57.[1]The group caught the attention of
Officer Michael Jordan who was on patrol nearby. AR at 57-58.
Officer Jordan approached the group and informed them that
they would need to return to their rooms before someone filed
a noise complaint. AR at 58. The four refused. Id.
One of the males in the group (it is unclear who), stated,
“we have been here for seven months and we will do what
we want.” Id. Officer Jordan again asked the
group to return to their rooms; and, again, they refused.
Id. Officer Jordan left and advised the group that
if he had to come back via a complaint he would need to take
their names and report the incident to their class
coordinator. Id.
Approximately
30 minutes later, Officer Jordan received a noise complaint
and was dispatched back to the building. AR at 59. Upon
arriving, Officer Jordan saw Officers Shelton Fuller and Mark
Ruis approaching the same group he spoke to earlier.
Id. Officer Jordan overheard Mr. Iaccarino say
“this is a waste of my time for the same old
mother-f*ing sh*t.” Id. The Officers
repeatedly requested the trainees to produce their
identifications; and all four students continued to refuse.
AR at 62. Mr. Wood “began getting loud” with
Officer Fuller while refusing to hand over his
identification, to the point where the other trainees began
telling him to calm down. Id. After several attempts
by the Officers to get the identifications for the report,
the Officers called the shift supervisor, Lieutenant James
Wiley. AR at 63.
The
saga continued when Lt. Wiley arrived. Lt. Wiley repeatedly
asked for the trainees' identifications, and the trainees
refused and continued to drink. AR at 60. Mr. Wood stated he
“did not have to give up his f*ing ID card” and
then walked away saying “this is bullsh*t.” AR at
67. Ms. Chaney responded by using her phone to film Lt.
Wiley; and by stating he did not have the authority to
request her identification. Id. Iaccarino was
“very argumentative” and told the other trainees
the officers had no authority and “could not do
sh*t;” continued to use profanity and began recording
Lt. Wiley on his phone. Id. Mr. Castillo stated he
would not comply because he did nothing wrong. AR at 68. At a
stalemate, Lt. Wiley contacted Christopher Meidt, the
Security and Emergency Management Specialist (SEM), for
assistance. Id.
During
the wait for SEM Meidt, Mr. Castillo had an unpleasant
conversation with Officer Ruis. AR at 63-64. Mr. Castillo
approached Officer Ruis and stated, “Hey,
‘mustache' . . . you're thinking your life
sucks right now. . . . ‘Mustache,' you're gonna
welcome me back to FLETC every day at the gate, you're
gonna say . . . ‘welcome to FLETC, Sir' I'm
gonna get you fired for this, I hate you. I hate you,
I've got more experience than you. I know I do!” AR
at 63. Mr. Castillo followed up this monologue with an
“aggressive look by furrowing his eyebrows
intensely.” AR at 64. Officer Ruis maintained his
composure and the situation did not escalate. Id.
Ms. Chaney then “finally said okay, ” and
provided her identification to Officer Fuller and left. AR at
71. SEM Meidt arrived shortly thereafter. AR at 64.
By all
accounts, Mr. Iaccarino and SEM Meidt did not get along.
See, e.g., AR at 49. Mr. Iaccarino “confronted
SEM Meidt immediately” and wanted to know why he needed
to produce his identification. AR at 50. After SEM Meidt
explained who he was and asked for the trainees'
identifications, Mr. Iaccarino “blatantly refused,
” AR at 68, was “very belligerent, ” AR at
49, and began filming SEM Meidt, AR at 68. Mr. Iaccarino
stopped filming when instructed to do so by the Officers, but
continued to argue about producing his identification. AR at
64, 68. SEM Meidt instructed Mr. Iaccarino that he would be
detained if he did not produce his identification. AR at 50.
Mr. Iaccarino did not comply and was put in handcuffs.
Id. Once in handcuffs, Mr. Iaccarino dropped his
identification card to his feet. AR at 60. Messrs. Castillo
and Wood provided their identifications soon after. AR at 50.
All three were transported to another FLETC building,
Building 93, for further investigation. AR at 64-65.
The
group arrived at Building 93; Ms. Chaney joined them shortly
of her own volition. AR at 71. Mr. Castillo continued to
verbalize his distaste for Officer Ruis and his goal to get
him fired. AR at 65. Mr. Iaccarino was compliant with all
orders from that point on. AR at 64. The local police were
contacted, and two trainees submitted to breathalyzer tests:
Mr. Wood's results showed a blood-alcohol content of .061
and Mr. Iaccarino's results showed a blood-alcohol
content of .108. AR at 60-61. Ms. Chaney and Mr. Castillo
refused the test. Id. The trainees were separated
and ultimately provided witness statements. AR at 68. After
providing the statements, they were free to leave, but told
that there would be an investigation into the incident. AR at
50.
B.
The Investigation/Inquiry Procedure
Because
many of the issues in this case relate to the procedures
required whenever FLETC conducts an investigation or inquiry
into alleged misconduct, a brief summary of those procedures
is provided before addressing the investigation conducted
into the circumstances of the January 21 incident.
FLETC's
Student Misconduct Manual (“misconduct manual”)
“establishes procedures for inquiries and
investigations of student . . . misconduct as well as
procedures for imposing discipline on students who commit . .
. misconduct while in training status.” AR at 83. The
misconduct manual defines two types of investigatory
procedures into misconduct. The first is an “inquiry,
” defined as an “administrative fact-finding
procedure. . . . used to determine the facts when a student
is alleged to have committed an infraction[] and/or
misconduct but is not suspected of committing criminal
activity or organized misconduct.” AR at 85. The
second, an “investigation, ” is also a
“fact-finding procedure” but is “used
whenever a student is suspected of having committed a
criminal act or misconduct.” Id. An
investigation, as opposed to an inquiry, begins when
“[a]lleged incidents of criminal acts or serious
misconduct . . . [are] referred to the [Office of
Professional Responsibility (“OPR”)].” AR
at 90. If OPR chooses not to investigate the allegations, it
returns the investigation to the Training Management Division
(“TMD”), Division Chief of the training program
for further inquiry. Id. The standard of evidence to
show misconduct occurred is proof by preponderance of the
evidence. AR at 96.
The
misconduct manual sets the minimum requirements for the
manner in which an inquiry or investigation is conducted. AR
at 91-95. “When conducting an inquiry or an
investigation, at minimum, the [investigative officer]
shall” notify the student and “allow the student
an opportunity to address the allegations and to submit
relevant rebuttal material.” AR at 91. The
investigative officer is required to “summarize the
subject student interview in a [memorandum of investigation],
” which the investigative officer is required to
provide to the “witness for review and
signature.” Id. The TMD Chief is required to
review the investigative file and “prepare an action
memorandum to the appropriate Discipline Approval
Authority”[2] (“DAA”) recommending a
particular punishment. Id.
When
reviewing the investigative file, the DAA, “at a
minimum, . . . shall utilize” certain factors “to
determine what, if any, discipline is appropriate.” AR
at 94. The factors include:
(a) The seriousness of the alleged misconduct;
(b) The likelihood of the recurrence of the alleged
misconduct;
(c) The likelihood that the presence of the student will have
a disruptive or undesirable effect on the class and/or upon
the training environment if the student remains in training;
(d) The likelihood that the student will [or] will not repeat
the alleged misconduct;
(e) The student's record prior to the alleged misconduct;
(f) The student's response to the allegations of
misconduct;
(g) Whether the student made any admission of responsibility,
regret, and/or remorse;
(h) The type of discipline recommended by the [investigative
officer] ...