Michael Crooks v. Raymond Mabus, Jr.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted October 14, 2016 Decided December 23, 2016
No. 15-5212
MICHAEL CROOKS,
APPELLANT
v.
RAYMOND EDWIN MABUS, JR., SECRETARY OF THE NAVY AND
DEE MEWBOURNE, REAR ADM, USN, NAVAL SERVICE
TRAINING COMMAND,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01614)
John B. Wells was on the briefs for appellant.
R. Craig Lawrence and Jason T. Cohen, Assistant U.S.
Attorneys, were on the brief for appellees. Fred E. Haynes,
Assistant U.S. Attorney, entered an appearance.
Before: TATEL, Circuit Judge, and EDWARDS and
GINSBURG, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
2
EDWARDS, Senior Circuit Judge: The Navy maintains a
Junior Reserve Officers’ Training Corps (“NJROTC”) at
public and private secondary schools that apply to establish a
unit and meet the applicable statutory standards. 10 U.S.C. §
2031(a)(1). To support the program, the Secretary of the Navy
may detail certain “retired officers and noncommissioned
officers,” in addition to other qualified individuals, to serve as
NJROTC instructors. 10 U.S.C. § 2031(c)–(d). Certification
as an “instructor in leadership, wellness and fitness, civics,
and other courses related to the content of the program,” 10
U.S.C. § 2033(a), is a prerequisite for retired officers or
noncommissioned officers to serve as NJROTC instructors.
The Navy retains the authority to revoke an instructor’s
certification if it determines that the person’s “continued
certification . . . is not in the best interests of the program.”
Commander, Navy Education and Training Command
Instruction (“CNETINST”) 1533.9K, Art. 404(e)(5). In
making such a determination, the Navy considers the
instructor’s “conduct, performance, and evaluations.” Id.Appellant Michael Crooks retired as a Major in the United
States Marine Corps on June 30, 1994. Shortly before his
retirement, the Navy certified him as a NJROTC instructor.
From 1995 to 2008, Appellant was employed as a Senior
Naval Science Instructor (“SNSI”) at Pearl River High
School’s NJROTC program in Pearl River, Louisiana. On
November 16, 2007, following receipt of unfavorable reviews
from the Principal of Pearl River High School and a NJROTC
Area Manager, the NJROTC Program Manager revoked
Appellant’s certification. Decertification Letter, Joint
Appendix (“JA”) 50. On October 22, 2013, after two
NJROTC Instruction Certification Boards upheld his
decertification, Appellant filed suit in District Court to contest
his removal from the NJROTC program. On May 20, 2015,
after reviewing the parties’ cross-motions for summary
3
judgment, the District Court granted judgment to the Navy.
Appellant now appeals.
In challenging the District Court’s judgment, Appellant
advances three principal arguments. First, he contends that the
regulation on which the Navy relied to revoke his certification
is unconstitutionally vague. He also asserts that the Navy
denied him due process because it failed to accord him
adequate notice and opportunity to be heard when
determining whether he should be permitted to continue to
serve as a NJROTC instructor. Finally, he claims that the
Navy’s decertification decision was arbitrary and capricious
and unsupported by substantial evidence. For the reasons
explained below, we find no merit in these claims. We
therefore affirm the judgment of the District Court.
I. BACKGROUND
Until 2006, Appellant apparently received positive
reviews and evaluations of his performance as a NJROTC
instructor at Pearl River High School. However, beginning in
2006, a number of parties, including students, the Principal of
Pearl River High School, and the NJROTC Area Manager
who was tasked with reviewing Appellant’s work raised
concerns about his performance and conduct. The criticisms
levied against Appellant included claims that he slept during
class, left NJROTC student cadets unattended, failed to
adhere to the NJROTC curriculum, and did not meet the
NJROTC’s mandatory bodyweight requirement. 2007
NJROTC Instructor Evaluation, JA 51. At some point during
the decertification process, the Principal of Pearl River High
School provided the Navy with a letter alleging that Appellant
had “falsely report[ed] to the U.S. Navy the number of
students enrolled at the school which was indicating to the
Navy he met the ten percent quota [necessary] to keep the unit
4
from going on probation.” JA 191; see JA 189–92. Cadets and
their parents also submitted letters and emails suggesting that
the substance of Appellant’s classes was not in line with the
NJROTC’s curriculum. They also complained about
Appellant’s “alienat[ing] . . . class behavior,” which included
“slamming a rod down on tables . . . grabbing cadets by the
waist . . . prodding cadets with the same rod used to slam on
tables, [and] calling cadets names such as ‘stupid’ and
‘moron.’” JA 102; see JA 99–107.
On November 16, 2007, after receiving unsatisfactory
evaluations from both the Principal and the NJROTC Area
Manager, and after affording Appellant an opportunity to
provide a written rebuttal of the charges leveled against him,
the Navy advised Appellant that his certification in the
NJROTC was “being revoked due to unsatisfactory marks on
[his] Instructor Evaluation and Observation Report.”
Decertification Letter, JA 50. The parties agree that the
decertification action was taken pursuant to CNETINST
1533.9K, Article 404(e)(5), which states that:
“[Instructor c]ertification will be revoked . . . [if] upon
consideration of the conduct, performance, and evaluations of
an [instructor] by the school and/or designated inspectors, [the
Chief of Naval Education & Training] determines that
continued certification of the instructor is not in the best
interests of the program.” See Br. for Appellant at 15; Br. for
Appellee at 46.
Following the initial decertification decision, Appellant’s
counsel sent a letter to the Navy demanding a “full hearing.”
JA 96. The Navy interpreted this as a “request for
reconsideration” by a NJROTC Instructor Certification Board
(“Certification Board”). JA 97. Prior to reconsideration by the
Certification Board, Appellant was permitted to submit
additional information, including the results of an
5
investigation conducted by his counsel’s private investigator,
the results of a polygraph test taken by Appellant, and letters
from parents and former students who supported him. See JA
108–17, 131–36, 138–43, 157–59. The NJROTC Area
Manager also provided the Certification Board with additional
materials, including letters and emails from cadets and their
parents regarding Appellant’s conduct. See JA 98–107.
On April 23, 2008, the Certification Board affirmed the
revocation of Appellant’s instructor certification. JA 183–84.
In justifying the action, the Certification Board members
emphasized Appellant’s deviation from the NJROTC
curriculum, classroom absences, sleeping in class, and
“incidents of alleged physical contact” with cadets. JA 176,
179. Appellant appealed the Board’s decision and a second
NJROTC Certification Board was constituted. On September
14, 2008, the second Board found that Appellant’s NJROTC
instructor certification should not be reinstated. JA 219.
On October 22, 2013, Appellant filed a complaint in the
District Court seeking vacatur of the Navy’s decision and the
restoration of his certification. JA 25. The parties filed cross-
motions for summary judgment and, on May 20, 2015, the
District Court issued a memorandum opinion and order
granting the Navy’s motion for summary judgment and
denying Appellant’s motion for summary judgment.
II. ANALYSIS
A. Standard of Review
We review the District Court’s grant of summary
judgment de novo. See Menkes v. U.S. Dep’t of Homeland
Sec., 637 F.3d 319, 329 (D.C. Cir. 2011). “In a case like the
instant one, in which the District Court reviewed an agency
6
action under the [Administrative Procedure Act (“APA”)], we
review the administrative action directly, according no
particular deference to the judgment of the District Court. On
an independent review of the record, we will uphold the
agency action unless we find it to be ‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.’
5 U.S.C. § 706(2)(A).” Holland v. Nat’l Mining Ass’n, 309
F.3d 808, 814 (D.C. Cir. 2002); see EDWARDS, ELLIOTT, &
LEVY, FEDERAL STANDARDS OF REVIEW 115–16 (2d ed.
2013).
B. The Navy Regulation in Article 404(e)(5) of CNETINST
1553.9K is Not Void for Vagueness
Appellant was decertified pursuant to CNETINST
1533.9K, Article 404(e)(5), which provides that an
individual’s certification may be revoked if,
upon consideration of the conduct,
performance, and evaluations of an SNSI/NSI
by the school and/or designated inspectors,
[the Chief of Naval Education & Training]
determines that continued certification of the
instructor is not in the best interests of the
program.
Appellant claims that this regulation violates the void-for-
vagueness doctrine because “a person of ordinary intelligence
[cannot] readily identify the applicable standard for inclusion
and exclusion.” Br. for Appellant at 16 (quoting United Food
& Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l
Transit Auth., 163 F.3d 341, 358–59 (6th Cir. 1998)). We
disagree.
7
“Outside of the First Amendment context, a plaintiff must
show that the law in question ‘is impermissibly vague in all of
its applications’” to succeed on a facial challenge. Decatur
Liquors, Inc. v. District of Columbia, 478 F.3d 360, 364 (D.C.
Cir. 2007) (quoting Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)). But cf.
Johnson v. United States, 135 S. Ct. 2551, 2556–62 (2015)
(finding penal statutory provision was void for vagueness
although it would be permissible as applied to some conduct
because the statute required applying an uncertain term to “an
idealized ordinary case of the crime,” id. at 2651, and “not to
real-world facts or statutory elements,” id. at 2557).
Appellant’s claim falls far short of the “impermissibly vague
in all of its applications” standard.
There are, as the Supreme Court has noted, “limitations in
the English language with respect to being both specific and
manageably brief.” U.S. Civil Serv. Comm’n v. Nat’l Ass’n of
Letter Carriers, AFL-CIO, 413 U.S. 548, 578–79 (1973). This
tension was borne out in Arnett v. Kennedy, in which the
Court concluded that a statute permitting termination of
federal employees “as will promote the efficiency of the
service” was not impermissibly vague on its face. 416 U.S.
134, 159 (1974). Justice Rehnquist’s plurality opinion, whose
reasoning was joined by a majority of the Court on this issue,
rejected the notion that “a detailed code of employee
conduct,” rather than a more general standard was required
when Congress was attempting to provide “myriad different
federal employees performing widely disparate tasks a
common standard of job protection.” Id.; see id. at 164(Powell, J. concurring); id. at 177 (White, J., concurring in
part and dissenting in part). Crucial to the Court’s decision in
Arnett was the fact that Congress had not “written upon a
clean slate” when it promulgated the contested standard. Id. at
160. Rather, as the Court noted, “[t]he Civil Service
8
Commission ha[d] indicated that what might be said to be
longstanding principles of employer-employee relationships,
like those developed in the private sector, should be followed
in interpreting [the contested standard].” Id. In other words,
the agency’s standard comported with the “rough idea of
fairness” which animates the vagueness doctrine, providing a
framework for individuals attempting to understand the
statute’s provision for removal of employees in instances that
would “promote the efficiency of the service.” Id. at 159–60
(citation omitted).
In this case, the “best interests of the program” standard in
CNETINST 1533.9K, Article 404(e)(5) is given context by
reference to the factors that the Navy considers when
determining whether an individual’s conduct warrants
decertification. The regulation provides that the Navy will
look to an instructor’s “conduct, performance, and the
evaluations of an SNSI/NSI by the school and/or designated
inspectors” in deciding whether decertification is appropriate.
These evaluations include a variety of metrics, such as:
“[a]dvance classroom preparation; [i]nstructor/cadet rapport;
[and p]ersonal conduct.” NJROTC Instructor Observation
Report, JA 52. This guidance, paired with the heavy burden
Appellant faces in demonstrating that the regulation is
impermissibly vague in “all of its applications,” Village of
Hoffman Estates, 455 U.S. at 495, renders his facial challenge
to CNETINST 1533.9K, Article 404(e)(5) unavailing.
Appellant also cannot credibly assert that the Navy’s
regulation is impermissibly vague as applied to his case. Br.
for Appellant at 16. The behavior that resulted in his
decertification – being verbally abusive toward cadets,
sleeping in class, and failing to adhere to the NJROTC’s
curriculum – was of a nature that he surely should have
known that it was “not in the best interests of the program.”
9
See United States v. Thomas, 864 F.2d 188, 198 (D.C. Cir.
1988) (rejecting as-applied vagueness challenge where
appellants had notice because the regulation in question
plainly encompassed their behavior); see also San Filippo v.
Bongiovanni, 961 F.2d 1125, 1136–37 (3d Cir. 1992) (noting
that regulation providing that a teacher could be dismissed for
failure to maintain “standards of sound scholarship and
competent teaching” was not vague as applied to a professor
who had been accused of verbal abuse and intimidation of
students as “[a] reasonable, ordinary person using his
common sense and general knowledge of employer-employee
relationships would have fair notice” that he could be
dismissed under this standard, id. 1137); Fowler v. Bd. of
Educ. of Lincoln Cty., Ky., 819 F.2d 657, 664–66 (6th Cir.
1987) (statute proscribing “conduct unbecoming a teacher”
was not unconstitutionally vague as applied to a teacher who
permitted a “controversial, highly suggestive and somewhat
sexually explicit movie to [be shown to] a group of high
school students,” id. at 665).
In sum, on the record before us, we can find no merit in
Appellant’s void-for-vagueness challenge to CNETINST
1533.9K, Article 404(e)(5). We therefore conclude that the
regulation is not unconstitutionally vague.
C. The Navy Did Not Violate Appellant’s Procedural Due
Process Rights
Appellant contends that the Navy’s failure to identify the
students who submitted letters that were critical of his
performance as a NJROTC instructor or to provide him with
the opportunity to interview individuals whose evaluations
and opinions were considered during the course of the Navy’s
decertification proceedings violated his procedural due
process rights. Br. for Appellant at 14.
10
In assessing this claim, we first note that, before the
District Court, Appellant did not argue that the Navy’s
decision to redact students’ names from letters submitted in
the course of his decertification was improper. See Crooks v.
Mabus, 104 F. Supp. 3d 86, 102 (D.D.C. 2015). Therefore,
this claim has been forfeited. See District of Columbia v. Air
Florida, Inc., 750 F.2d 1077, 1078–79 (D.C. Cir. 1984).
Before addressing Appellant’s remaining due process
claim, we will first determine whether the Navy’s
decertification decision deprived him of a property or liberty
interest. On the record before us, it is clear that Appellant has
not demonstrated a property interest sufficient to trigger the
protections of the Fifth Amendment’s Due Process Clause.
We are also doubtful that he has shown a constitutionally
protected liberty interest, but we need not reach this issue.
We reject Appellant’s claim that the Navy’s decertification
proceedings violated his procedural due process rights
because, as the District Court concluded, even “[a]ssuming,
arguendo” that Appellant had protected liberty or property
interests, “he was afforded all the process he was due.”
Crooks, 104 F. Supp. 3d at 102.
1. Appellant’s Alleged Property Interest
The Supreme Court has noted that property interests “may
take many forms.” Bd. of Regents v. Roth, 408 U.S. 564, 576
(1972). However,
[t]o have a property interest in a benefit, a
person clearly must have more than an
abstract need or desire for it. He must have
more than a unilateral expectation of it. He
11
must, instead, have a legitimate claim of
entitlement to it.
Id. at 577.
Generally, a “claim of entitlement” is not viable when a
government agency wields significant or unfettered discretion
in determining whether to award or rescind a particular
benefit or when an individual lacks an objective basis for
believing that he is entitled to retain a benefit. See, e.g., Wash.
Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 35–36
(D.C. Cir. 1997); Hall v. Ford, 856 F.2d 255, 265–67 (D.C.
Cir. 1988). Indeed, we have held that an individual has no
“cognizable property interest” in the renewal of a license or
certification where the applicable agency “regulations
explicitly permit the agency to not renew an examiner for any
reason deemed appropriate by the Administrator.” Fried, 78
F.3d at 692; see also Lopez v. FAA, 318 F.3d 242, 249 (D.C.
Cir. 2003) (finding that failure to renew a particular
designation did not implicate a protected property interest
where agency regulations stated that such designation was “a
privilege granted by the Administrator” and that it was “not
the right of every qualified applicant to be granted” such a
designation).
The regulation at issue in this case, CNETINST 1533.9K,
is similar to the regulations at issue in Fried and Lopez. As
noted above, 1533.9K, Article 404(e)(5), permits the Navy to
revoke a NJROTC instructor’s certification if, “upon
consideration of [his or her] conduct, performance, and
evaluations . . . continued certification . . . is not in the best
interests of the program.” Given this language, it is plain that
the Navy has retained expansive authority and discretion to
determine whether an individual should be allowed to remain
in the NJROTC program as an instructor. The language
12
certainly does not suffice to establish that an instructor’s
position creates a protected property interest.
Appellant attempts to bypass the difficulty posed by the
regulation by claiming that the property interest implicated in
this case is his employment at Pearl High School, not his
certification as a NJROTC instructor. See Reply Br. for
Appellant at 10–11. He points to now-defunct language from
a Louisiana statute which provided that individuals would
“automatically become . . . regular and permanent teacher[s]
in the employ of the school board” after serving three years as
a probationary teacher. Id. He thus argues that the state statute
provides him with a protected property interest because he
was an employee of Pearl River and taught there for more
than three years. Id. It is noteworthy that, in 2012, the
Louisiana legislature amended this statute to remove the
language upon which Appellant relies. H.B. 974, 2012 Leg.,
Reg. Sess. (La. 2012). Even if this language were still good
law, however, Appellant could not rely on a Louisiana statute
to diminish the Navy’s considerable discretion in determining
whether to revoke his NJROTC certification. The state law
does not control Navy determinations regarding who will
serve as NJROTC instructors. And without certification,
Appellant cannot serve as a NJROTC instructor at Pearl River
High School or at any other school.
In sum, on the record in this case, we hold that Appellant
has not demonstrated a property interest that was infringed by
the Navy’s revocation of his certification.
2. Appellant’s Alleged Liberty Interest
It is unclear whether Appellant has presented sufficient
evidence to demonstrate that the Navy’s decision infringed a
constitutionally protected liberty interest. Appellant argues
13
that, “as a proud Marine, [he] had a liberty interest in his
service reputation.” Reply Br. for Appellant at 12. He
amplifies this point a bit by arguing that “[t]his court has
recognized that the stigma to reputation in employment gives
rise to a liberty interest.” Id. (citing Doe v. U.S. Dep’t of
Justice, 753 F.2d 1092, 1104–05 (D.C. Cir. 1985)). According
to Appellant, the nature of the charges against him, which
included dishonesty, due to his alleged falsification of
enrollment figures, “castigat[ion] at a [public] school board
hearing,” and the publication of the charges against him in the
local newspaper, were sufficiently stigmatizing so as to
foreclose future employment opportunities. Id. at 12–13. This,
he claims, was enough “to trigger a liberty interest in [his]
reputation.” Id. at 13.
Appellant seems to suggest, inter alia, that his liberty
interest was infringed because, during the Navy’s
decertification proceedings, he was accused of dishonesty in
falsifying enrollment figures. Indeed, two Reconsideration
Board members specifically noted the allegations of
dishonesty leveled against Appellant in affirming his
decertification. See JA 185, 217. He thus apparently contends
that this supports his due process claim. See O’Donnell v.
Barry, 148 F.3d 1126, 1140 (D.C. Cir. 1998) (noting that
“defamation alone is not actionable under the due process
clause, but that defamation ‘in the course of the termination of
employment’ is” (quoting Paul v. Davis, 424 U.S. 693, 710
(1976))); see also Doe v. U.S. Dep’t of Justice, 753 F.2d at1104–05. He is mistaken. In order to proceed on this claim,
Appellant must demonstrate that the Navy publicized the
charges against him. As we noted in Doe, in a “stigma-plus”
case – i.e., a case involving a claim of defamation – “the
government must be the source of the defamatory
allegations.” 753 F.2d at 1108 (citing Mosrie v. Barry, 718
F.2d 1151, 1161 (D.C. Cir. 1983)). However, there is nothing
14
in the record of this case to indicate that the Navy publicized
the revocation of Appellant’s certification or the reasons for
its decision. Whatever adverse publicity resulted from the
decertification appears to have emanated from either the
actions of the school board or reports in a local newspaper
that were not attributed to the Navy. Thus, it cannot be said
that the Navy infringed Appellant’s liberty interest by
publicizing the details of his case. See Fried, 78 F.3d at 692
(noting that the government did not make public the
claimant’s non-renewal, nor did it publicize any reasons for
that non-renewal); see also O’Donnell, 148 F.3d at 1140;
Orange v. District of Columbia, 59 F.3d 1267, 1274–75 (D.C.
Cir. 1995).
Apart from his defamation claim, Appellant contends that
he suffered a stigma to his reputation that gave rise to a liberty
interest. Broadly speaking, we have recognized two theories
pursuant to which an individual who alleges “government
interference with his future employment prospects may
demonstrate the tangible change in status required to prove
constitutional injury.” Taylor v. Resolution Trust Corp., 56
F.3d 1497, 1506 (D.C. Cir. 1995). First, “if [the
government’s] action formally or automatically excludes [the
plaintiff] from work on some category of future [government]
contracts or from other government employment
opportunities, that action . . . implicates a liberty interest.” Id.(quoting Kartseva v. Dep’t of State, 37 F.3d 1524, 1528 (D.C.
Cir. 1994)) (alterations in original). Second, if the
government’s action “precludes [the plaintiff] – whether
formally or informally – from such a broad range of
opportunities that it interferes with [his] constitutionally
protected right to follow a chosen trade or profession,” the
action implicates a liberty interest. Id. (citing Kartseva, 37
F.3d at 1529) (internal quotation marks omitted).
15
To the extent that Appellant’s liberty interest claim rests
on the second theory – i.e., the Navy’s decision interferes
with his constitutionally protected right to follow a chosen
profession – he is on weak ground. His argument claims too
much. Discharge from a particular job is not the same as
exclusion from one’s chosen profession. See Abdelfattah v.
U.S. Dep’t of Homeland Sec., 787 F.3d 524, 539 (D.C. Cir.
2015) (noting that “the loss of ‘one position in [the]
profession’ is insufficient to implicate a Fifth Amendment
liberty interest in following one’s chosen trade or profession.
Rather an individual must suffer a binding disqualification
from work or broad preclusion from his or her chosen field.”
(citing Kartseva, 37 F.3d at 1528–29) (citations omitted)). In
Fried, for example, this court held that an individual’s liberty
interest was not implicated where an agency refused to renew
his designated pilot examiner license because he could still
“sell flight instruction services to willing private buyers.” 78
F.3d at 692. Here too, Appellant, while unable to continue in
his role as a NJROTC instructor, was able to find employment
as a teacher at a new institution. Reply Br. for Appellant at
13.
To the extent that Appellant’s claim rests on the first
theory – i.e., the Navy’s decision effectively excluded him
from work on some category of future government contracts
or from other government employment opportunities – it is
harder to assess. The case law is somewhat difficult to square
with respect to claims of “stigma to reputation,” which is the
focus of Appellant’s claim in this case.
In Taylor, the court explained that:
Constitutional injury supposes something more than
simple defamation or stigma. Paul v. Davis, 424
U.S. 693 (1976). Even a plaintiff who receives an
16
admittedly defamatory recommendation from a
prior government employer that “would
undoubtedly . . . impair his future employment
prospects” cannot establish a constitutional
violation “so long as such damage flows from injury
caused by the defendant to a plaintiff's reputation”
alone. Siegert v. Gilley, 500 U.S. 226, 234 (1991).
To prove constitutional injury, the plaintiff must
show not only that the government has imposed
some stigma upon him, but also that it has worked
some change in his status under law. See Paul v.
Davis, 424 U.S. at 711–12.
Taylor, 56 F.3d at 1506. In other words, Appellant may not
“sue purely on the basis of the stigma associated with being
fired.” O’Donnell, 148 F.3d at 1139. “[S]tigma alone is not
actionable, without a showing that a ‘right or status previously
recognized by state law’ has been ‘distinctly altered or
extinguished.’” Id. (quoting Paul v. Davis, 424 U.S. 693, 711
(1976)). As this case demonstrates, however, determining
whether a claimant has suffered a “change in status” sufficient
to support a claim of constitutional injury is not always easy.
One way to read the record here is to say that the Navy’s
decertification decision had a very limited effect – it merely
foreclosed Appellant from serving as a NJROTC instructor,
nothing more. Appellant was not barred from other
government employment opportunities. Indeed, he has not
even claimed that he has been unsuccessful in seeking other
employment positions with the federal government. At worst,
Appellant suffered damage to his reputation, which, without
more, is not enough to support his liberty interest claim. In
other words, it is hard to see how the Navy’s action not only
“imposed some stigma upon him, but also . . . worked some
change in his status under law.” Taylor, 56 F.3d at 1506.
17
On the other hand, another way to view Appellant’s
situation is to say that he has been excluded from all future
employment or contracting opportunities with the NJROTC
program. In Old Dominion Dairy Products v. Secretary of
Defense, 631 F.2d 953, 963–64 (D.C. Cir. 1980), we held that
a contractor had a viable liberty interest due process claim
after a government agency found the contractor guilty of
misconduct and prevented the contractor from securing
further contracts with the same agency. In this case, Appellant
seems to view his decertification from the NJROTC program
as comparable.
We acknowledge that Appellant’s claim that the Navy’s
decision infringed a constitutionally protected liberty interest
is not implausible. Nevertheless, we remain dubitante on this
point. We need not struggle further with this issue, however,
because we agree with the District Court that, even
“[a]ssuming, arguendo” that Appellant had protected liberty
or property interests, “he was afforded all the process he was
due.” Crooks, 104 F. Supp. 3d at 102.
3. Appellant was Afforded All of the Process That He
Was Due
In support of his claim that he was denied constitutionally
adequate process, Appellant advances several arguments.
Taking into account the commands of Mathews v. Eldridge,
424 U.S. 319 (1976), and its progeny, we find no merit in any
of Appellant’s contentions.
First, Appellant claims that the Navy redacted the names
from letters written by some of his students. As noted above,
this argument was never raised in the District Court so it is
plainly forfeited.
18
Appellant also claims, without any record citation, that the
Navy “stymie[d]” his investigation by preventing him from
interviewing students, school staff, and naval personnel. Br.
for Appellant at 14–15. The record, however, supports the
Navy’s position that it did not stand in his way. A report from
Appellant’s own private investigator shows that he tried to
contact some of his students but was unsuccessful for a
variety of reasons, none having to do with the Navy. JA 157.
Appellant also concedes in his Reply Brief that the Navy
played no role in his inability to interview school personnel.
Reply Br. for Appellant at 15.
Finally, in his reply brief, Appellant does submit an email
chain that might corroborate his claim that the Navy
prevented him from interviewing Commander Ladner, who
conducted one of his unfavorable performance reviews. Reply
Br., Exh. A. Not only does this come too late, Appellant never
moved to supplement the record with those emails either in
this court or before the District Court. Even if he had,
Appellant eventually deposed Ladner in 2011, yet he neglects
to offer any information that he gleaned from that deposition
that he believes would have altered the Boards’ decisions. See
Horning v. SEC, 570 F.3d 337, 347 (D.C. Cir. 2009) (“In the
absence of any suggestion of prejudice, we cannot conclude
that [Appellant] was deprived . . . of procedural due process
. . . .”).
In addressing Appellant’s due process claim, the District
Court stated:
[Appellant] submitted a detailed rebuttal to the
allegations against him prior to his decertification,
and, with the assistance of counsel, to each of the
Boards reviewing the decision. As the defendants
19
point out, the “[Appellant] received all the
administrative review procedures that are available,
except for an in-person hearing, and [Appellant]
does not argue that he was entitled to such a
hearing.” Defs.’ Opp’n at 15. The D.C. Circuit has
held that “[d]ue process requires ‘notice reasonably
calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and
afford them an opportunity to present their
objections.’” Reeve Aleutian Airways, Inc. v. United
States, 982 F.2d 594, 599 (D.C. Cir. 1993). Thus,
even assuming, without deciding, that the
[Appellant] had a liberty or property interest in his
NJROTC certification, the [Appellant’s] receipt of
the evidence against him and his three separate
opportunities, of which he availed himself, to
submit rebuttal evidence, constitute sufficient due
process such that the plaintiff’s right to due process
under the Fifth Amendment was not abridged.
Crooks, 104 F. Supp. 3d at 103 (citations and footnotes
omitted). We agree. “Under the utilitarian balance prescribed
by the Supreme Court in Mathews v. Eldridge, [Appellant]
has received at least the quantum of process [he] was due
before being” decertified by the Navy from the NJROTC
program. Reeve Aleutian Airways, 982 F.2d at 602.
D. The Navy’s Decertification Decision Was Neither
“Arbitrary and Capricious” Nor Unsupported by
“Substantial Evidence”
Appellant claims that the Navy’s decertification decision
was both arbitrary and capricious and lacking in substantial
evidence. However, there is no material difference between
the APA’s “arbitrary and capricious” standard and its
20
“substantial evidence” standard as applied to court review of
agency factfinding. See Safe Extensions, Inc. v. FAA, 509
F.3d 593, 604 (D.C. Cir. 2007) (“[An] informal adjudication[]
. . . must be supported by substantial evidence – otherwise it
would be arbitrary and capricious.”) (quotation marks
omitted); see also Ass’n of Data Processing Serv. Orgs. v. Bd.
of Governors of Fed. Reserve Sys., 745 F.2d 677, 683–84
(D.C. Cir. 1984); EDWARDS, ELLIOTT, & LEVY, FEDERAL
STANDARDS OF REVIEW, supra, at 203, 220–21. We will
therefore evaluate Appellant’s arbitrary-and-capricious and
substantial evidence claims in tandem in reviewing the
Navy’s decertification decision.
In determining whether the Navy’s actions were arbitrary
and capricious, this court does not “substitute its judgment for
that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Rather, we
examine an agency’s decision to ensure that it “was
reasonable and reasonably explained.” Jackson v. Mabus, 808
F.3d 933, 936 (D.C. Cir. 2015). Similarly, we may find that
an agency decision is “supported by substantial evidence even
though a plausible alternative interpretation of the evidence
would support a contrary view.” Morall v. DEA, 412 F.3d
165, 176 (D.C. Cir. 2005) (quoting Robinson v. Nat’l Transp.
Safety Bd., 28 F.3d 210, 215 (D.C. Cir. 1994)).
Appellant’s objections to the Navy’s decision to revoke
his certification largely center around two interrelated
arguments. First, he claims that the Navy failed to take
seriously his contention that information submitted by the
Principal of Pearl River High School that accused Appellant
of failing to adequately perform his duties was due to “bad
blood” between the two. Br. for Appellant at 23. Second,
Appellant claims that the Navy abused its discretion in failing
to consider evidence submitted by him at various points
21
throughout the decertification process, including: a polygraph
test taken by Appellant; the results of an investigation
conducted by his counsel’s private investigator; his
explanation that he fell asleep in class due to a recently
prescribed medication; a positive evaluation of his work in his
new teaching position; and a finding by the Louisiana
Department of Labor that he had not been discharged from his
position for misconduct connected with his employment. Br.
for Appellant at 23–26. These arguments do not hold water.
The Navy was not required to credit Appellant’s claim
that the Principal’s assessment of his performance was
attributable to a disagreement between the two men, nor did it
need to “explain away every point raised” or piece of
evidence contained in Appellant’s submissions. Crooks, 104
F. Supp. 3d at 100 (citing Fla. Gas Transmission Co. v.
FERC, 604 F.3d 636, 645 (D.C. Cir. 2010)). At every
proceeding in which the Navy considered whether to revoke
Appellant’s certification, it informed Appellant that the
officials responsible for reviewing his case had considered the
entire record before them, including the evidence submitted
by Appellant that he now claims was overlooked or
improperly weighed. See JA 122, 183, 219. The fact that the
Navy did not draw the inferences that Appellant might wish
when examining this evidence does not render its decision
arbitrary and capricious or unsupported by substantial
evidence.
Under well-established law, the Navy was only required
to review relevant information and articulate a satisfactory
explanation establishing “a rational connection between the
facts found and the choice made.” Am. Trucking Ass’ns v.
Fed. Motor Carrier Safety Admin., 724 F.3d 243, 249 (D.C.
Cir. 2013) (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at
43)). As the District Court’s opinion carefully lays out, “the
22
evidence [that Appellant] presented to the Boards was
available for their consideration, but the Boards articulated,
based on other solid evidence” – including the facts that the
Appellant had deviated from the NJROTC curriculum,
interacted inappropriately with cadets, and was found to be
either sleeping during, or absent from, class – “a rational
explanation for a decision against the [Appellant].” Crooks,
104 F. Supp. 3d at 102. We agree. Therefore, we have no
grounds to second-guess the judgment reached by the Navy.
III. CONCLUSION
For the reasons set forth above, we affirm the judgment of
the District Court.