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Iaccarino v. Duke

United States District Court, District of Columbia

August 30, 2018

DEREK IACCARINO, Plaintiff
v.
ELAINE DUKE, Acting Secretary, U.S. Department of Homeland Security, et al., Defendants.

          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] ...

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