Iaccarino v. Kelly ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________
)
DEREK IACCARINO, )
)
Plaintiff )
)
v. ) Civil Action No. 17-0857(EGS)
)
ELAINE DUKE, Acting Secretary, )
U.S. Department of Homeland )
Security, et al., )
)
Defendants. )
_________________________________)
MEMORANDUM OPINION
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
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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
2
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.
1 The certified administrative record in this matter was
submitted on May 31, 2018 and is docketed at ECF No. 25. When
citing the AR throughout this opinion, the Court cites to the
ECF header page number.
3
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.
4
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
5
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
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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.
7
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;
2 The misconduct manual states the Discipline Approval Authority
is the “Site Director at the Field Training Directorate . . .
and the Deputy Assistant Director (“DAD”).” AR at 84.
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(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] and the TMD Chief;
(i) Any other relevant information.
AR at 94. Upon consideration of these factors, the DAA has the
option of approving, modifying, or denying the action
recommended by the TMD Chief. Id. If the DAA chooses to remove
or expel a student, then the student has a right to appeal. AR
at 95.
The misconduct manual outlines the procedure for such an
appeal. AR at 95–96. The Enterprise Program Manager (“EPM”)
reviews expulsion appeals. 3 AR at 95. The student has the option
of presenting an appeal either orally, by writing, or both. Id.
The EPM is required to review the disciplinary file and any new
materials including information provided by the student in
writing or during the oral appeal. Id.
3 According to the misconduct manual, the EPM is the Assistant
Director of the Centralized Training Management Directorate. AR
at 84.
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The misconduct manual lays out a two-step process for the
EPM’s ultimate resolution of the appeal. AR at 96. After review
of the information submitted, the EPM “shall first determine,
based on any new evidence whether the infraction(s) and/or
misconduct occurred.” Id. “The standard of review during an
appeal remains proof by preponderance of the evidence.” Id. If
it is determined that the alleged misconduct occurred, the EPM
next “shall determine whether the discipline imposed was
appropriate.” Id. If the EPM decides to “uphold [the] removal or
expulsion, the EPM shall set forth the reasons why this
punishment was appropriate.” Id. The EPM must also “issue a
letter to the student containing all findings and decisions.”
Id. The EPM’s decision on appeal constitutes a final agency
action. Id.
C. The Inquiry
Pursuant to the procedures set forth in the misconduct
manual, on January 24, 2017, Senior Advisor Steve Bialousz
contacted OPR and requested that it open an investigation into
the events of the morning of January 21. AR at 26. OPR informed
Senior Advisor Bialousz that the matter was “primarily
administrative in nature” and that OPR “would not open an
official investigation.” Id. OPR referred the case back to
FLETC, and Senior Advisor Bialousz assigned the case to Program
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Specialist (“PS”) Edward King to conduct an inquiry into the
incident. Id.
That same day, PS King recommended that the training
program expel Mr. Iaccarino. Id. PS King found that Mr.
Iaccarino engaged in misconduct “specifically by blatantly
refusing to follow lawful instructions, disrespecting FLETC
security officers, . . . using inappropriate and offensive
language when addressed by security, demonstrating a lack of
respect and professionalism for fellow law enforcement officers,
[and] demonstrating threatening behaviors.” Id. PS King also
found that Mr. Iaccarino “. . . repeatedly call[ed] an officer a
derogatory name, . . . and threaten[ed] to have the officer
fired.” Id.
PS King presented this recommendation to the TMD Chief, who
in turn presented the same findings to the Deputy Assistant
Director. AR at 17, 24. Mr. Iaccarino received notice of his
expulsion on January 31, 2017. AR at 21–23. He would later find
out that Mr. Castillo was also expelled, but that Mr. Wood and
Ms. Chaney were not. 4 Mr. Iaccarino timely appealed his expulsion
to the EPM. AR at 15–16.
4 Mr. Castillo original joined Mr. Iaccarino in this lawsuit
challenging his expulsion, but subsequently dropped his
appearance. Compl., ECF No. 1 ¶ 53. Ms. Chaney was initially
expelled, but she successfully appealed, and her expulsion was
reversed. Id. ¶54. Mr. Wood was not expelled. Id. ¶ 55.
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After considering Mr. Iaccarino’s oral and written
statements, the EPM affirmed Mr. Iaccarino’s expulsion. AR at 1.
The EPM found that, based on all the information provided, “the
alleged misconduct occurred[,] and the discipline imposed—
expulsion--was appropriate.” Id. The entirety of the EPM’s
explanation is as follows:
I am satisfied that the allegations of your
misconduct have been substantiated by a
preponderance of evidence. The facts I found
persuasive in reaching this determination are:
your failure to comply with repeated FLETC
Security personnel demands to produce your
identification. You finally produced your
identification after FLETC Security placed you
in handcuffs. In your oral response, you
disputed that you displayed aggressive
behavior towards FLETC [S]ecurity personnel
and looked to resolve the situation earlier
and did not refuse to produce your
identification when asked. I do not find these
arguments you raised to be persuasive or
compelling.
Id. The EPM next advised Mr. Iaccarino of his right to judicial
review under the Administrative Procedure Act (“APA”). Id.
Mr. Iaccarino sought judicial review of his expulsion under
the APA, 5 U.S.C. § 701, et seq., by filing this complaint on
May 9, 2017. Compl., ECF. No. 1 ¶ 1. He seeks vacatur of the
expulsion and a remand back to DHS to issue a new final agency
decision. Id. ¶ 63. The defendants moved for summary judgment
and Mr. Iaccarino filed an opposition and cross-motion for
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summary judgment. Defs.’ Mot., ECF No. 18; Pl.’s Cross-Mot. ECF
No. 19. The motions are now ripe for decision.
II. Legal Standard
Summary judgment should be granted only if the moving party
has shown that there are no genuine issues of material fact and
that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991
(D.C. Cir. 2002). In determining whether a genuine issue of
material fact exists, the Court must view all facts in the light
most favorable to the non-moving party. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The
non-moving party’s opposition, however, must consist of more
than mere unsupported allegations or denials and must be
supported by affidavits or other competent evidence setting
forth specific facts showing that there is a genuine issue for
trial. Fed. R. Civ. P. 56(c); see Celotex Corp., 477 U.S. at
324.
When reviewing agency action pursuant to the APA, the Court
must determine whether the challenged decision is, inter alia,
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law,” 5 U.S.C. § 706(2)(A); “in excess of
statutory jurisdiction, authority, or limitations, or short of
statutory right,” id. § 706(2)(C); or “without observance of
13
procedure required by law,” id. § 706(2)(D). The arbitrary or
capricious provision, under subsection 706(2)(A), “is a
catchall, picking up administrative misconduct not covered by
the other more specific paragraphs” of the APA. Ass'n of Data
Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed. Reserve
Sys. (ADPSO), 745 F.2d 677, 683 (D.C. Cir. 1984). The “scope of
review under the ‘arbitrary and capricious’ standard is narrow
and a court is not to substitute its judgment for that of the
agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
Although this scope of review is deferential, “courts
retain a role, and an important one, in ensuring that agencies
have engaged in reasoned decision making.” Judulang v. Holder,
565 U.S. 42, 53 (2011). In evaluating agency actions under the
arbitrary and capricious standard, the court must be satisfied
that the agency has “examine[d] the relevant data and
articulate[d] a satisfactory explanation for its action
including a rational connection between the facts found and the
choice made.” Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C.
Cir. 2006) (internal citation and quotation marks omitted).
Moreover, when an agency “has failed to provide a reasoned
explanation, or where the record belies the agency’s conclusion,
[the court] must undo its action.” Cnty. of Los Angeles v.
Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999)(citation and
14
internal quotation marks omitted). In other words, “the agency
must explain why it decided to act as it did.” Butte Cnty. v.
Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010).
III. Discussion
As the parties both note, in reviewing the agency’s
decision the Court is not free “to substitute its judgment for
that of the agency.” See State Farm, 463 U.S. at 43 (1983).
Deference must be given to the agency, even when reasonable
minds could differ about the correct conclusion. See Calloway v.
Harvey, 590 F. Supp. 2d 29, 35 (D.D.C. 2008). Under this
deferential review, the question for this Court is whether the
evidence in the record is sufficient to support the defendants’
decision and establish “a rational connection between the facts
found and the choice made.” Am. Trucking Ass’ns, Inc. v. Fed.
Motor Carrier Safety Admin., 724 F.3d 243, 249 (D.C. Cir. 2013).
Mr. Iaccarino makes three principal arguments as to why
DHS’s decision to expel him from the training program cannot
stand: (1) DHS’s decision to give him a harsher punishment than
other trainees who acted in the same manner was arbitrary and
capricious, Pl.s’ Cross-Mot., ECF No. 19-1 at 16–17; (2) DHS’s
conclusion that he engaged in misconduct was not supported by
the record, id. at 14–16; and (3) DHS failed to provide a
reasoned explanation for why expulsion was the appropriate
15
punishment in his case. Id. at 17–19. This Court addresses each
issue in turn.
A. Disparate treatment
Mr. Iaccarino argues that his behavior was “nearly
identical” to that of Mr. Wood and that, because Mr. Wood only
received probation, the agency acted in an arbitrary and
capricious manner when it failed to explain why it imposed a
different punishment for the same behavior. Pl.’s Cross-Mot.,
ECF No. 19-1 at 16–17. The defendants argue that Mr. Iaccarino
received a different punishment because his actions were
different, and therefore the agency’s decision was not arbitrary
and capricious. Defs.’ Reply, ECF No. 21 at 7–8.
The Court of Appeals for the District of Columbia Circuit’s
(D.C. Circuit) “long line of precedent has established that an
agency action is arbitrary when the agency offer[s] insufficient
reasons for treating similar situations differently.” Kort v.
Burwell, 209 F. Supp. 3d 98, 112 (D.D.C. 2016) (quoting Cnty. of
Los Angeles v. Shalala, 192 F.3d 1005, 1022 (D.C. Cir. 1999));
see also Kreis v. Sec’y of the Air Force, 406 F.3d 684, 687
(D.C. Cir. 2005) (“It is axiomatic that ‘[a]n agency must treat
similar cases in a similar manner unless it can provide a
legitimate reason for failing to do so.’”) (citation omitted).
In determining whether an agency’s action is arbitrary and
capricious in treating like cases differently, the court first
16
determines whether the agency treated “similarly situated”
parties in a different manner. See Anna Jaques Hosp. v.
Sebelius, 583 F.3d 1, 6–7 (D.C. Cir. 2009) (declining to review
whether the Department of Health and Human Services allegedly
acted arbitrarily by applying different standards for similar
hospitals when appellee failed to show the hospitals were indeed
similarly situated). If the parties are similarly situated, then
the court next determines whether the agency adequately
explained why it failed to treat the cases in a similar manner.
Kort, 209 F. Supp. 3d at 117 (holding agency’s action was
arbitrary and capricious when it failed to explain why it denied
Medicare coverage for a certain diagnostic scan while approving
coverage for another, similarly situated, diagnostic test).
The administrative record shows that Mr. Iaccarino and Mr.
Wood were not similarly situated because their actions were
materially different. 5 There are some similarities between Mr.
Iaccarino’s and Mr. Wood’s actions in that each initially
refused to show their identification, AR at 60, and, at times,
used inappropriate language with officers. AR at 67. However,
5 Mr. Iaccarino also argues that his behavior was identical to
Ms. Chaney, whose expulsion was lowered to disciplinary
probation. Pl.s’ Cross-Mot., ECF No. 19-1 at 16. Ms. Chaney was
the first trainee to surrender her identification, and she went
back to her room before SEM Meidt arrived. AR 71. She was never
placed under arrest and voluntarily reported to Building 93 for
further investigation. Id. The record clearly shows that Mr.
Iaccarino and Ms. Chaney were not similarly situated.
17
the similarities end there. The record shows that Mr. Wood
provided his identification to the Officers without being
handcuffed, whereas Mr. Iaccarino was arrested before providing
his identification. AR at 50. The record also shows that,
although Mr. Wood was at times uncooperative, he was described
as “respectful.” AR at 58. In contrast, Mr. Iaccarino is
described as the “most heavily intoxicated” and the “most
vocal,” AR at 50, and in multiple reports described as
“belligerent,” AR at 18, 49. Because the record shows that there
were material differences between Mr. Wood’s and Mr. Iaccarino’s
actions, and therefore they were not “similarly situated,” DHS
did not act arbitrary and capriciously by imposing different
punishments. 6 See Anna Jaques Hosp., 583 F.3d at 6–7.
B. DHS’s decision that Mr. Iaccarino engaged in misconduct
Mr. Iaccarino next argues that the evidence in the record
did not support DHS’s conclusion that he engaged in misconduct.
Pl.s’ Cross-Mot., ECF No. 19-1 at 14–16. He contends that the
administrative record does not contain factual support for many
6 Mr. Iaccarino references another trainee who at some point was
disciplined for drinking at a FLETC event, but was not expelled.
Pl.s’ Cross-Mot., ECF No. 19-1 at 17. According to Mr.
Iaccarino, the other trainee was “drinking at a FLETC event” and
“creating a security incident that took . . . security officers
one hour to resolve.” Id. (citing AR at 11). Those are simply
inadequate facts to determine that the circumstances of Mr.
Iaccarino and this unnamed trainee were sufficiently alike such
that the agency erred in not explaining why it treated Mr.
Iaccarino’s case differently.
18
of the findings upon which his expulsion was based. Id.
Specifically, Mr. Iaccarino takes issue with the findings in PS
King’s report as not supported by the record. Id. at 14–15.
Since the findings have no basis in the record, Mr. Iaccarino
argues, the final agency decision upholding his appeal which
relied on those findings could not have been supported by
substantial evidence. Id.
Defendants contend that the decision was supported by
sufficient evidence. First, defendants argue that it is
undisputed that FLETC had the authority to expel Mr. Iaccarino.
Defs.’ Mot., ECF No. 18-1 at 13. Next, the defendants argue that
the record in this case is “replete with evidence supporting
Iaccarino’s expulsion.” Id. at 14–15. The defendants point to
various statements made by the Officers who responded to the
noise violation describing Mr. Iaccarino’s behavior as
uncooperative, and reports which show that Mr. Iaccarino
violated the noise and identification policies. Id. With respect
to its explanation for the expulsion, defendants point to PS
King’s report to the TMD Chief as sufficient. Id. at 16.
Defendants argue that the report “provided a detailed
description of the findings of fact made during FLETC’s
investigation . . . [and] that this misconduct violated four
separate FLETC student misconduct provisions.” Id. (citing AR at
24).
19
When review of an agency’s action is “bound up with a
record-based factual conclusion,” the reviewing court must
determine whether that conclusion “is supported by substantial
evidence.” Dickinson v. Zurko, 527 U.S. 150, 164 (1999); see
also Kaufman v. Perez, 745 F.3d 521, 527 (D.C. Cir. 2014)
(noting that agency factual findings may be “set aside . . .
only if unsupported by substantial evidence on the record as a
whole”) (citation and internal quotation marks omitted). “An
agency’s refusal to consider evidence bearing on the issue
before it constitutes arbitrary agency action within the meaning
of § 706.” Butte Cnty. Cal. v. Hogen, 613 F.3d 190, 194 (D.C.
Cir. 2010). As the D.C. Circuit has explained, an agency
decision “would be arbitrary and capricious” if it is not
“supported by substantial evidence” because “it is impossible to
conceive of a ‘nonarbitrary’ factual judgment supported only by
evidence that is not substantial in the APA sense.” ADPSO, 745
F.2d at 684. “Consequently, when assessing whether agency action
is arbitrary or capricious, in their application to the
requirement of factual support[,] the substantial evidence test
and the arbitrary or capricious test are one and the same.” Id.
at 683.
It is undisputed that PS King’s report provided the
findings for the agency’s determination of misconduct. See
Defs.’ Mot., ECF. No. 18-1 at 16; Pl.s’ Cross-Mot., ECF No. 19-1
20
at 14. Mr. Iaccarino’s arguments that the record does not
support the agency’s findings that he assumed an aggressive
posture, was placed in handcuffs because of his aggressive
actions, and that he demonstrated threatening behaviors, are
easily dismissed. There is sufficient evidence in the record to
support these findings: for example, Officer Fuller explicitly
stated “Mr. Derek Iaccarino became very belligerent towards Mr.
Meidt,” AR at 49; and Officer Ruis stated “Derek Iaccarino
become so argumentative with Mr. Meidt, at that point, that Mr.
Meidt instructed me . . . to place [Mr. Iaccarino] in
handcuffs,” AR at 64.
That said, the administrative record does not support the
other two findings in the report--that Mr. Iaccarino called an
officer a derogatory name and threatened to have that officer
fired. See AR at 26. It is clear from the record that another
student referred to Officer Ruis by a derogatory name,
“Mustache.” AR at 63 (“Hey, Mustache . . . you’re thinking your
life sucks right now? . . . Mustache, you’re gonna welcome me
back to FLETC every day at the gate.”). And that this same
student repeatedly threatened to get Officer Ruis fired. See,
e.g., id. (“I’m gonna get you fired for this, I hate you.”). In
Mr. Iaccarino’s expulsion letter he was informed that he
violated FLETC standards of conduct in part by repeatedly
calling officers derogatory names, AR at 21, however, the
21
administrative record contains no facts to support such a
finding. 7
Mr. Iaccarino did not contest these deficiencies in the
report; nor in his expulsion letter in his appeal to DHS.
Furthermore, there is no indication that the EPM relied on these
erroneous findings in determining that Mr. Iaccarino engaged in
misconduct. In Mr. Iaccarino’s appeal, he brought to the EPM’s
attention several discrepancies in the Officers’ statements and
“several examples of the lack of quality of evidence.” AR at 8–
12. The EPM stated the “matters . . . raised in [Mr.
Iaccarino’s] written appeal and oral response” were “carefully
considered.” AR at 1. Critically, the EPM did not rely on the
findings related to the derogatory name-calling or threats of
firing an officer in its decision finding that the misconduct
occurred. Id. Rather, the EPM relied on two facts in determining
there was misconduct: (1) Mr. Iaccarino “fail[ed] to comply with
repeated FLETC Security personnel demands to produce . . .
identification,” and (2) Mr. Iaccarino finally produced his
identification “after FLETC Security placed [him] in handcuffs.”
Id. The EPM also stated that it did not find persuasive Mr.
7 It is troubling that in several places in the Inquiry Report
Mr. Castillo is referred to as the subject of the misconduct
inquiry--not Mr. Iaccarino. See, e.g., AR at 24 (“This inquiry
was conducted to determine if Mr. Castillo’s actions were in
violation of the above mentioned FLETC Directive.”) (emphasis
added).
22
Iaccarino’s arguments that he was not aggressive towards
officers and that he produced his identification when asked. Id.
It is these findings that the EPM “found persuasive in
reaching” its determination that “the allegations of [Mr.
Iaccarino’s] misconduct [were] substantiated by a preponderance
of evidence.” Id. Because the findings that Mr. Iaccarino
refused to comply with the security officers’ requests for his
identification and did not produce his identification until he
was handcuffed were supported by sufficient evidence in the
record, the Court finds that DHS’s decision that the alleged
misconduct occurred was supported by substantial evidence.
C. DHS’s explanation for Mr. Iaccarino’s expulsion
Mr. Iaccarino next argues that DHS’s decision to expel him,
rather than suspend or terminate him, was arbitrary and
capricious for two reasons. First, Mr. Iaccarino argues that DHS
relied on facts that did not exist to support its conclusions.
Pl.’s Cross-Mot., ECF No. 19-1 at 17–18. Second, Mr. Iaccarino
contends that DHS acted in an arbitrary and capricious manner
when it failed to consider or explain important relevant
factors. Id. at 18–19. The defendants argue that Mr. Iaccarino
violated a host of FLETC rules and point to the statements of
witnesses as support for his expulsion. Defs.’ Reply, ECF No. 21
at 4–6. Defendants disagree that DHS failed to consider the
23
relevant factors because the factors were considered during Mr.
Iaccarino’s appeal. Id. at 9–11.
“The requirement that agency action not be arbitrary and
capricious includes a requirement that the agency adequately
explain its result.” Public Citizen, Inc. v. F.A.A., 988 F.2d
186, 197 (D.C. Cir. 1993) (citing Federal Election Comm’n v.
Rose, 806 F.2d 1081, 1088 (D.C. Cir. 1986)). It is a fundamental
tenet of administrative law that “an agency set forth its
reasons for decision; and an agency’s failure to do so
constitutes arbitrary and capricious agency action.” Amerijet
Int’l., Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014).
This fundamental principle “is indispensable to sound judicial
review.” Id. The arbitrary and capricious standard of the APA
“mandat[es] that an agency take whatever steps it needs to
provide an explanation that will enable the court to evaluate
the agency’s rationale at the time of decision.” Pension Benefit
Guaranty Corp. v. LTV Corp., 496 U.S. 633, 654 (1990). Put
simply, an agency “must explain why it chose to do what it did .
. . and conclusory statements will not do.” Amerijet, 754 F.3d
at 1350.
This does not mean that an agency’s ultimate conclusion
needs to be impeccably reasoned to survive a challenge under the
APA. A reviewing court will “uphold a decision of less than
ideal clarity if the agency’s path may reasonably be discerned.”
24
Int’l Ladies’ Garment Workers’ Union v. Donovan, 722 F.2d 795,
815 (D.C. Cir. 1983) (citing Bowman Transp., Inc. v. Arkansas–
Best Motor Freight System, 419 U.S. 281, 286 (1974)). However,
an agency’s explanation must, at a minimum, contain “a rational
connection between the facts found and the choice made.” State
Farm, 463 U.S. at 43 (citing Burlington Truck Lines, Inc. v.
United States, 371 U.S. 156, 168 (1962)). “When an agency
provides a statement of reasons insufficient to permit a court
to discern its rationale, or states no reasons at all, the usual
remedy is a remand to the agency for additional investigation or
explanation.” Tourous Records, Inc. v. Drug Enforcement Admin.,
259 F.3d 731, 738 (D.C. Cir. 2001) (citation and internal
quotation marks omitted).
Mr. Iaccarino’s first argument is that DHS relied on facts
non-existent in the record. However, as explained above, the EPM
explicitly relied on facts that were supported by the record in
explaining its finding that misconduct occurred. See Supra at
22–23. The record also belies Mr. Iaccarino’s second argument
that DHS never consider several mitigating factors. The record
contains Mr. Iaccarino’s written submissions for his appeal,
which analyzes each of the factors he contends were not
considered. AR at 10. The letter notifying Mr. Iaccarino of the
result of his appeal references his written submissions, and the
submissions were considered in connection to his appeal. AR at
25
1. The EPM reviewed these factors as part of “the matters [Mr.
Iaccarino] raised in his written appeal” which the EPM
“carefully considered.” Id. The APA does not require more.
Crooks v. Mabus, 104 F. Supp. 3d 86, 102–03 (D.D.C. 2015)
(rejecting argument that the agency allegedly did not consider
the plaintiff’s submissions when the record contained the
submissions and the agency referenced the submissions in its
final decision).
What the APA does require, however, is an explanation as to
why DHS determined that expulsion was an appropriate remedy for
Mr. Iaccarino’s misconduct. See Dickson v. Sec’y of Defense, 68
F.3d 1396, 1404 (D.C. Cir. 1995) (stating agency did not
adequately explain its decision when it merely listed facts and
conclusions without connecting them in a rationale way). Here,
after explaining the facts which formed the basis for its
finding of misconduct, the agency explained Mr. Iaccarino’s
right to judicial review. However, DHS “omitted a critical step-
-connecting the facts to the conclusion” that expulsion was the
appropriate sanction in Mr. Iaccarino’s case. See Dickson, 68
F.3d at 1405.
This omission is even more glaring because FLETC’s own
rules require such an explanation. As the misconduct manual
explains, the EPM must make two determinations when reviewing a
decision to expel a trainee. AR at 96. First, the EPM must
26
determine whether the misconduct was found by a preponderance of
the evidence. Id. Next, if the EPM finds that the misconduct
indeed did occur, the EPM “shall determine whether the
discipline imposed was appropriate.” Id. Moreover, the EPM is
required to issue a letter to the student containing its
“findings and decisions” and if the EPM decides to “uphold [the]
removal or expulsion, the EPM shall set forth the reasons why
this punishment was appropriate.” Id. (emphasis added). These
requirements track the APA requirement that an agency must
provide an explanation for its actions.
No such explanation was given in this case. The letter
issued to Mr. Iaccarino contains no reason for why his
punishment, expulsion, was the appropriate sanction. There is
only one sentence in the letter that is related to the
discipline imposed in this case: “I have determined that I
believe the alleged misconduct occurred and the discipline
imposed--expulsion--was appropriate.” AR at 1. This statement
that “the discipline imposed--expulsion--was appropriate” is the
kind of conclusory statement that this Court has repeatedly held
is insufficient to explain an agency’s action. See e.g., Tourous
Records, 259 F.3d at 737 (“The letter says nothing other than
that the ‘Affidavit of Indigency you submitted in lieu of a cost
bond is not adequately supported.’ That is not a statement of
reasoning, but of conclusion.”).
27
The defendants make two arguments in an attempt to salvage
this deficient explanation. First, the defendants argue that PS
King’s Inquiry Report adequately explained the expulsion. Defs.’
Mot., ECF No. 18-1 at 16–18. This argument fails because, as
explained above, the Inquiry Report clearly relied on erroneous
facts. See Supra at 21–22. The decision on appeal did not
consider those facts; rather it based its finding of misconduct
on facts borne out by the administrative record in explaining
why the misconduct occurred. AR at 1 (explaining the facts it
found persuasive in reaching its finding of misconduct).
Defendants’ second argument that the record contains ample
evidence to support Mr. Iaccarino’s expulsion similarly misses
the point. The defendants point to several FLETC rules that Mr.
Iaccarino allegedly violated as a rationale for the expulsion.
Defs.’ Reply, ECF No. 21 at 5–7. To be sure, the agency
explained its reasoning as to why the misconduct alleged was
substantiated by the preponderance of the evidence. AR at 1.
However, after the agency explained the basis for the finding of
misconduct, it provided no reason as to why the imposed sanction
was warranted based on that finding of misconduct. To the extent
the defendants seek to fill that void with references to other
violations that Mr. Iaccarino may have committed, this “court[]
may not accept [the defendants’] post hoc rationalizations” as a
substitute for DHS’s explanation, or lack thereof. See Remmie v.
28
Mabus, 898 F. Supp. 2d 108, 120 (D.D.C. 2012) (stating agency’s
purported rationale for a final decision explained in its
briefing to the Court is no substitute for the agency’s actual
explanation).
The agency had several options at its disposal to
discipline Mr. Iaccarino for the misconduct it found had
occurred. It chose expulsion, effectively ending Mr. Iaccarino’s
career in federal law enforcement. The Court notes it is not
passing judgment on the agency’s methods or forms of discipline.
This Court’s limited role in the administrative scheme is to
determine if the agency adequately explained its decision. To
fulfill its obligation under that role, “this Court must be able
to ascertain the [agency’s] basis for the decision.” Reeder v.
James, 121 F. Supp. 3d 1, 10 (D.D.C. 2015). DHS’s scarce
explanation in this case is insufficient to allow the Court to
ascertain DHS’s basis for its decision to expel Mr. Iaccarino.
See id. Because DHS did not explain why expulsion was the
appropriate punishment, contrary to its own procedures, its
decision was arbitrary and capricious.
Mr. Iaccarino requests this Court to “order the Defendants
to rescind the expulsion actions from [his] records of
employment with the Defendants and issue a new final agency
decision consistent with the less severe penalties issued to the
other trainees” involved in the January 21, 2017 incident.
29
Compl., ECF No. 1 ¶ 63. However, “[w]hen an agency provides a
statement of reasons insufficient to permit a court to discern
its rationale, or states no reasons at all, the usual remedy is
a remand to the agency for additional investigation or
explanation.” Tourous Records, Inc., 259 F.3d at 738. Therefore,
this Court remands this matter to the agency so that it may
explain its reasoning for determining that expulsion is the
appropriate sanction for Mr. Iaccarino’s misconduct.
IV. CONCLUSION
Accordingly, the defendants’ Motion for Summary Judgment is
GRANTED IN PART because DHS’s finding of misconduct was
supported by substantial evidence and DENIED IN PART because DHS
failed to explain why expulsion was the appropriate sanction for
that misconduct. Furthermore, Mr. Iaccarino’s Cross–Motion for
Summary Judgment is GRANTED IN PART because of DHS’s failure to
explain its reasoning for the expulsion and DENIED IN PART
because DHS’s misconduct finding was supported by substantial
evidence and because the appropriate remedy is a remand to the
agency rather than the relief Mr. Iaccarino requests of the
Court. The Court REMANDS the matter to DHS for further
proceedings consistent with this Memorandum Opinion. An
appropriate Order accompanies this Memorandum Opinion.
30
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
August 30, 2018
31