Edward A. Colley et al v. Deborah Lee James et al

Filing 42

MEMORANDUM AND OPINION by Judge Tanya S. Chutkan, U.S. District Court for the District of Columbia denying plaintiffs' motions and granting defendants' motion to transfer this case to California. See document for details. (sw)

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 1 of 45

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

EDWARD A. COLLEY and FREDERICK)
D MALCOMB,JR.,
.
)
Plaintiffs,
v.

)
)

DEBORAH LEE JAMES
Air Force Secretary, et al.,

Defendants.

)
)

Civil Action No. 15-cv-1385 (TSC)

~~ 1~1-0~ fi x. ~ ~L ~~(~~~~~

)

MEMORANDUM OPINION
Pro se plaintiffs Edward A. Colley and Frederick D. Malcomb, Jr. are retired Air Force
officers who were instructors in an Air Force Junior Reserve Officer Training Corps
(
"AFJROTC")unit. The Air Force decertified Plaintiffs as AFJROTC instructors after it found
that they failed to timely submit certain records. Plaintiffs unsuccessfully challenged the
decision through an Air Force administrative process and subsequently filed this lawsuit against
the Air Force and the two individual decision makers, seeking reversal of the decertification.'
Plaintiffs bring claims under the Administrative Procedure Act,5 U.S.C. § 551 et seq.; the
Privacy Act, 5 U.S.C. § 552a; the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.; the
Paperwork Reduction Act, 44 U.S.C. § 3501 et seq. and the Due Process clause ofthe Fifth and

' Plaintiffs also named the Secretary of the Air Force and another Air Force official as
defendants, but there is no indication these two individuals were involved in the decertification
or the administrative process.

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Fourteenth Amendments of the United States Constitution.2 (Am. Compl. ¶¶ 194-96, 101-02,
203a, 222, 239a, 2390
-239d,242a).
Before the court are the following motions:(1) Defendants' Motion to Dismiss or, in the
Alternative, for Summary Judgment or to Transfer Venue(ECF No. 6);(2)Plaintiffs' Motion for
Preliminary Injunction(ECF No. 16);(3)Plaintiffs' Motion for Preliminary Injunction and
Request for a Hearing(ECF No. 20); and (4)Plaintiffs' Motion for Telephone Status Conference
(
ECF No. 23).3 For the reasons set forth below, the court will GRANT Defendants' motion to
transfer this action to the Central District of California and DENY Plaintiffs' motions.
A BACKGROUND
.
Colley and Malcomb were employed by the Hart School District in Valencia, California
as JROTC instructors. (Am. Compl. ¶¶ 19, 23-24). Pursuant to federal law, all JROTC
instructors "must be certified by the Secretary" of that branch "as a qualified instructor" in areas
such as leadership, civics and ROTC related topics. 10 U.S.C. § 2033(a). The Secretary for each
branch of the military is responsible for "establish[ing] minimum acceptable standards for

1 The court will dismiss Plaintiffs' Fourteenth Amendment Due Process claim because such
claims are not actionable against the federal government. See Peavey v. Holder, 657 F. Supp. 2d
180, 186 n.6(D.D.C. 2009)("It is the due process clause ofthe Fifth, not the Fourteenth,
Amendment that applies to actions of the federal government."), aff'd, No. 09-5389, 2010 WL
3155823(D.C. Cir. Aug. 9, 2010).
3 In response to the Air Force's Motion to Dismiss, Plaintiffs filed an Amended Complaint as
of right, along with a 96-page response to the Air Force's motion. (See ECF Nos. 9, 10).
Normally, this court would have found the Air Force's motion moot and ordered the Air Force to
answer or otherwise respond to the Amended Complaint. However, because the Air Force raised
a venue issue in their Motion to Dismiss, which remained unsettled despite the Plaintiffs'
Amended Complaint and their response to the motion, the court ordered the Air Force to file a
reply limited to Plaintiffs' venue arguments.
While Defendants' motion was pending, Plaintiffs moved for a preliminary injunction(ECF
No. 16), which they later withdrew after filing a second preliminary injunction motion(ECF No.
2 p. 1), now fully briefed by all parties.
0
2

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performance and achievement for qualified [ROTC]units." 10 U.S.C. § 2031(c)(1)-(3).
Consistent with this authority, the Secretary of the Air Force publishes AFJROTC "Instructions"
that cover management of the ROTC units. "COMPLIANCE WITH THIS PUBLICATION
IS MANDATORY"appears in bold near the top of those instructions. (AR 321, AFJROTC 362002; AR 275, AFJROTC 36-2001; AR 177, AFJROTC 36-2001).4
Although Plaintiffs are not Air Force employees, the Air Force reimburses the school
district for part of Plaintiffs' instructor salaries. (See Am. Compl. ¶ 15). Air Force ROTC
instructors must:(1)"meet the criteria established by appropriate instructions and meet
certification ...requirements to perform instructor duty"; and (2)"meet and maintain school and
Air Force requirements and standards." (AR 331, AFJROTC 36-2002, ¶ 2.1.1; AR 339,
AFJROTC 36-2002, ¶ 4.4). The Air Force's "Holm Center" or "Headquarters"("HQ") manages
instructor compliance and may decertify instructors "for cause." (AR 331, AFJROTC 36-2002 ¶
2.1.2; AR 332, AFJROTC 36-2002 ¶ 2.2.2; AR 335-36, AFJROTC 36-2002,¶ 3.1.1).
As part of the ROTC program, the Plaintiffs used school equipment, as well as the Air
Force's "Automated Data Processing Equipment(ADPE)." (Am. Compl. ¶ 27). Plaintiffs
admit that "[t]he Air Force requires accountability and safekeeping" of the ADPE. (Id. ¶ 28).
Specifically, instructors must "conduct an annual AIM Inventory," which includes accounting

4 At various times during the incidents at issue, three versions of the Instructions were in effect.
AFJROTC 36-200] was issued on September 8, 2010, updated August 1, 2011, and then
replaced by Instruction 36-2002 on October 11, 2013. (AR 177, 320). Instruction 36-2001 was
re-issued on May 28, 2014, but it did not supersede Instruction 36-2002. (AR 275).
The court will quote and cite to the instructions) in effect at the time of the relevant events.
Additionally, when necessary to avoid confusion, the court will include the year in its citation to
the 36-2001 instructions: the current 36-2001 instruction will be cited as "AFJROTC 36-2001
(
5/28/14)" and the prior 36-2001 instruction will be cited as "AFJROTC 36-2001 (9/8/10)"

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for all computers, projectors, and digital cameras. (AR 206, AFJROTC 36-2001 (9/8/10)¶
13.4.5; AR 284, AFJROTC 36-2001 (5/28/14)¶ 4.3.1).
1 2014 PROBATION
.
Malcomb claims that in January 2014, he sent the unit's AIM inventory to Amy Frasier,
the Equipment Control Officer("ECO"), via facsimile and email, after which he telephoned her
to confirm receipt. (AR 385-86, Malcomb Decl. ¶ 8; see AR 414). Several months later, on
March 7, 2014, the AFJROTC Director sent an email to all units with a subject line that included
"
Annual IT equipment account compliance" and an April 10, 2014 deadline. (AR 149). The
email explained that ADPE accountability was an Air Force requirement that had to be
completed by the deadline. (Id.) The email also indicated that each unit was required to submit
f
our documents in order to be considered "compliant":(1)an equipment custodian appointment
letter;(2)training certificates(one for each instructor); and (3)an AIM inventory. (Id.) The
email further explained that a new submission process had been created in WINGS—a
computerized software program—and instead of emailing or faxing their ADPE documents, all
units had to upload documents to WINGS. (Id.)
Despite this, Malcomb asserts that he took no additional action because he had faxed and
emailed the inventory on January 20, and the March 7 email did not state that Plaintiffs were not
in compliance. (AR 414; AR 385-87 Malcomb Decl. ¶¶ 8, 24; Am. Compl. ¶¶ 51, 55-56).
Plaintiffs also claim they did not believe the email applied to them because they had already
complied with the inventory submission deadlines found in Air Force Manual provision 33-153
(
"AFM 33-153"). (AR 4, Colley Dec. ¶ 12; AR 386, Malcomb Decl. ¶ 12). As the court will
discuss below, AFM 33-153 apparently contained more general guidelines about ADPE
accountability than did the AFJROTC instructions and the emails from HQ.

4

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On Apri17, three days before the deadline, the AFJROTC Region 4 Director emailed
Plaintiffs and other units explaining that WINGS showed their units had not started their ADPE
accountability, despite prior warnings that the April 10 deadline "was extremely important!"
( 151). The units were warned that they should start the ADPE accountability process in
AR
order to "avoid any possible negative impacts." (Id.) It is undisputed that Plaintiffs were on
spring break when the email was sent. (Am. Compl. ¶ 58).
The day after the deadline, April 11, the AFJROTC Director sent noncompliant units,
including Plaintiffs', an email with the subject line: "ADPE Missed Suspense." (AR 153)
(
emphasis in original). The email stated:
On 7 Mar we notified you ofan AF level requirement to account for all AF owned
ADPE. You were given a suspense of 10 April to complete your inventory and
update it in WINGS. As of today, 11 April, this requirement has not been
completed for your ADPE account....
If you have not completed the suspense by 18 Apr, both instructors at your unit
will be placed on probation until the unit's ADPE account is fully compliant. If
you fail to bring the ADPE account within compliance by 30 Apr, both instructors
will be considered for decertification.
( 153).
AR
Although Plaintiffs were on spring break on April 11, the break ended on April 15, and
both Plaintiffs saw the email upon their return. (See Am. Compl ¶ 58). Even though the email
explicitly stated the recipient units were non-compliant, both Plaintiffs claim that, once again,
they did not believe their unit was out of compliance because they had faxed and emailed the
equipment inventory in January. (AR 4, Colley Decl. ¶ 14; AR 386, Malcomb Decl. ¶ 14).
On April 22, the Air Force placed both Plaintiffs on probation. (AR 155; Am. Compl. ¶
61). In his email to the school principal and Plaintiffs informing them of the suspension, the
Director noted that "[a]ccounting for ADPE is a strict Air Force compliance requirement. This is

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 6 of 45

an annual recurring requirement." (AR 155). Finally, he warned:"If the instructors fail to bring
the ADPE account within compliance by Apri130, 2014,[HQ] will initiate decertification
actions for both instructors." (Id. 156).
Later that day, Malcomb emailed the Director, indicating that because the unit had
previously sent the AIM inventory to ECO Frasier, he had thought his unit was "ahead of the
game," but that he intended to submit another inventory. (AR 414). Malcomb also mentioned
his "confusion on what documents were needed" and his discussions with Frasier about"how to
upload [the documents] into WINGS." (See id.) Plaintiffs entered all of the required documents
before the April 30 deadline and the Air Force subsequently removed them from probation. (AR
158).
The following month, the Director published a new set of instructions requiring that the
units use WINGS to account for ADPE. (AR 275; AR 284, AFJROTC 36-2001 (5/28/14)¶
4.2.1). The instructions also required that instructors log into WINGS and the instructors'
AFJROTC email account daily in order to remain current on all policies. (AR 299, AFJROTC

36-2ooi ~si2si14~ ¶ ~.2, ¶ ~.2.i~.
2 2015 DECERTIFICATION
.
On March 14, 2015, the Regional Director sent an email to the units providing
instructions on how to determine whether they had complied with the ADPE requirements. (AR
160). Again, Plaintiffs contend that they believed the email did not apply to them because they
were purportedly in compliance with AFM 33-153. (AR 5, Colley Decl. ¶ 24; AR 387,
Malcomb Decl. ¶ 24). Plaintiffs also contend that the email was unclear because it was labeled
as a "`reminder' with no reference to what it purported to remind [Plaintiffs] of." (ECF No. 10,
Pls. Mot. to Dismiss SOF Response # 51)(hereinafter "Pls. SOF Resp."). Although Plaintiffs

G

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admit Malcomb's email account was functioning, they defend their conduct in part by
contending that Colley's email account was "inactive or closed" at this time. (Id.)(citing AR
506); ECF No. 22, Pls. Reply p. 12).
On April 6, 2015, the AFJROTC Deputy Director sent an email to all units about the
annual inventory "suspense" date of April 10, reminding them that the annual equipment
inventory "ha[d] Air Force Level interest." (AR 162)
Plaintiffs allege they were on spring break at the time the email was sent, and that
Coney's email was deactivated. (Am Compl. ¶ 90; Pls. SOF Resp. #52)(citing AR 506).
Although Plaintiffs admit there were no problems with Malcomb's email account, they claim he
also did not receive the email. (ECF No. 22, Pls. Reply p. 12; Pls. SOF Resp. #52; see Am.
Compl. ¶¶ 88-89, 95). They argue that even if they had received the email, they still were not on
notice about the April 10 suspense date because, in their view, the suspense date conflicted with
the published suspense date found in the recently published instruction, AFJROTC 36-2001
(
5/28/14), which provided for submission of inventories between January 1 and April 30. (Pls.
SOF Resp. #52; AR 284, AFJROTC 36-2001 (5/28/14)¶ 4.3.1).
Spring break ended on April 12, 2015. (Am. Compl. ¶ 90). On April 17, the AFJROTC
Director sent the units, including Plaintiffs', an email with the subject line in bold indicating a
"
missed suspense." (AR 165). The email informed all recipients that their unit had missed the
suspense date and warned that if they did not comply by Apri124, 2015, they would "certainly be
placed on probation" and "considered for Decertification." (Id.) Recipients were asked to
contact the Regional Director if they had already completed their ADPE requirements. (AR 16566). Even though the Director sent the email to what appears to be Plaintiffs' unit email address,
Plaintiffs assert they did not receive the email at the time it was sent. (Pls. SOF Resp. #53; see

7

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Am. Compl. ¶¶ 91-95; ECF No. 20, Pls. Second Preliminary Injunction Br. p. 8)(hereinafter
" PI Br.").
Pls.
On April 24, 2015, Plaintiffs received an email from AFJROTC Region 4 Director,
Wayne Barron, stating that their unit had not started its ADPE compliance and asking them to
call his cell phone number. (See AR 168; Am. Compl. ¶ 97; AR 5-6 Colley Decl. ¶¶ 25, 28).
Barron attached an email he had received from the AFJROTC Director, who warned "[t]oday is
the last day to complete the suspense before probation and the AF suspense of 30 April(next
Thursday) could generate some decertification[]s." (Id.) Colley claims that he "attempted to
contact" Barron three days later, but was "unsuccessful." (AR 6, Colley Decl. ¶ 29).
On Apri128, 2015, Plaintiffs uploaded their signed AIM inventory and equipment
custodian appointment letter to WINGS. (AR 158; Am. Compl. ¶ 99). On May 7, 2015,
Plaintiffs uploaded both of their training certificates. (AR 158).
As a result of their late submission of the training certificates, on May 18, 20l 5, Plaintiffs
received a memorandum from AFJROTC Director Woods informing them that they would be
"
Decertified for Unsatisfactory Instructor Performance" effective the end of the academic year.
( 95, 97). Woods noted that Plaintiffs had been placed on probation the previous year for
AR
failing to timely complete the ADPE suspense,"despite personal direction and phone calls from
[
the] Regional Director." (AR 95, 97). He concluded that Plaintiffs' continued inability to
comply with AFJROTC requirements was a clear indicator of unsatisfactory performance and
therefore justified decertification for failing to "meet the standards expected of an Air Force
officer and an Air Force Junior ROTC instructor per AFJROTC 36-2002, paragraph 3.1.2.2.5."

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( 95, 97).5 Finally, Woods explained that Plaintiffs could appeal pursuant to AFJROTC 36AR
2002 Section 4.7.2, which allows for an appeal filed within 15 days of notification regarding the
decertification. (See id.)
Plaintiffs filed timely administrative appeals, admitting that they had submitted their
training certifications on May 7, but arguing that they had not violated the applicable submission
requirements. Specifically, Plaintiffs argued that they had complied with AFM 33-153, which
they contend does not require submission of training certificates. (AR 118-19, 121).6 Moreover,
Plaintiffs asserted that AFM 33-153 does not impose an Apri130 deadline, but instead requires
that units perform an annual equipment inventory no later than 365 calendar days "from the date
the commander signed the current inventory listing." (AR 118-20). Relying on AFM 33-153,
Plaintiffs argued that they never failed to meet any mandatory deadlines. Additionally, despite
the explicit warnings in the emails about possible decertification, both Plaintiffs asserted that
they "reasonably believed" the most serious sanction they faced for late ADPE submission was a
f
rozen account and an opportunity to correct any deficiencies. (AR 124, 137).
Two days after Plaintiffs submitted their appeals, the decertifications became effective.
The following month, on June 30, 2015, AFJROTC Vice Commander Hoffman upheld the
decertifications, finding that:
• Plaintiffs were decertified for failing to meet "the standards expected of an Air
Force officer and an Air Force Junior ROTC instructor per AFJROTC136-2002,
para 3.1.2.2.5 [the same provision cited by Woods], specifically for not

'AFJROTC 36-2002, Sections 3.1.2, 3.1.2.2 and 3.1.2.2.5 provide that an instructor can be
decertified for "willful misconduct," including a "[d]eterminaton by Holm Center/JR that an
instructor's performance or conduct does not meet the duties, responsibilities or conduct of an
[
instructor) as outlined in Chapter 1." (AR 336). Chapter 1 requires, inter alia, that instructors
"
meet standards as prescribed by applicable Department of Defense (DoD), Air Force,
AFJROTC and Holm Center instructions." (AR 323-4, AJROTC 36-2002, Section 1.1.3).
6 AFM 33-153 is not a part of the Administrative Record
E

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complying with the AFJROTC requirements by failing to meet the ADPE
suspense two years in a row despite being reminded by HQ AFJROTC."
• Plaintiffs were required to comply with both the AFM and AFJROTC
instructions, and that the latter may be more restrictive than the AFM. Thus,
Hoffman rejected the Plaintiffs' argument that they met their obligations because
they complied with AFM 33-153.
• Although Plaintiffs had "substantially complied] with HQ directives in general,"
they had failed to "comply with a specific and clear HQ AFJROTC direction two
years in a row. Other instructors who have failed to meet consecutive ADPE
suspenses have been similarly decertified."
• Plaintiffs were warned about potential decertification in both 2014 and 2015.
( 143-44, 146-47). Hoffman noted that it was not in the best interest of the Air Force to
AR
expend numerous hours sending multiple emails continually reminding instructors oftheir
responsibilities. (Id.)
B. MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs ask the court to grant a preliminary injunction requiring the Air Force to set
aside their decertifications. Injunctive relief is an "extraordinary and drastic remedy" that is
"
never awarded as of right." Munafv. Geren, 553 U.S. 674,689-90(2008)(quotation and
citations omitted). Accordingly,"the decision whether to grant a preliminary injunction is a
matter of discretion." Sherley v. Sebelius, 644 F.3d 388, 398 (D.C. Cir. 2011)(citation omitted).
Preliminary injunctions "should be granted only when the party seeking the relief, by a clear
showing, carries the burden of persuasion." Cobell v. Norton, 391 F.3d 251, 258(D.C. Cir.
2004)(citation omitted). The moving party must demonstrate:(i) a substantial likelihood of
success on the merits;(ii) that he or she would suffer irreparable injury absent the requested
injunctive relief; (iii) that the balance of equities tips in his or her favor; and (iv) that the public
interest would be furthered by the requested injunctive relief. See Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 20(2008).
10

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1 LIKELIHOOD OF SUCCESS ON THE MERITS
.
Plaintiffs argue they are likely to succeed on the merits because they are innocent and
because the Air Force violated federal law by revoking their AFJROTC certifications. The court
disagrees and addresses Plaintiffs' claims and arguments below.
A
.

Paperwork Reduction Act

Plaintiffs argue that the decertifications were invalid because the Air Force's ADPE
accounting requirements violated the Paperwork Reduction Act("PRA"),44 U.S.C. § 3501, et
seq. The PRA "prohibits any federal agency from adopting regulations which impose paperwork
requirements on the public unless the information is not available to the agency from another
source within the Federal Government ...." Dole v. United Steelworkers ofAm., 494 U.S. 26,
32(1990). The statute describes these paperwork requirements as a "collection of information"
44 U.S.C. § 3501(1), which is defined as:
"
(A) means the obtaining, causing to be obtained, soliciting, or requiring the
disclosure to third parties or the public, of facts or opinions by or for an agency,
regardless ofform or format, calling for either
(
i)

answers to identical questions posed to, or identical reporting or
recordkeeping requirements imposed on, ten or more persons, other
than agencies, instrumentalities, or employees of the United States;
or

(
ii)

answers to questions posed to agencies, instrumentalities, or
employees of the United States which are to be used for general
statistical purposes ...."

44 U.S.C. § 3502(3)(emphasis added). Thus, only under special circumstances does the PRA
limit the collection of information from U.S. government employees.

The term "agency" includes "military department[s]." 44 U.S.C. § 3502(1).
11

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Where an agency seeks a "collection ofinformation" as defined by the PRA,the agency
"
must submit [its] collection plan to OMB [Office of Management and Budget]."' CTIA-The
WirelessAss'n v. F.C.C., 530 F.3d 984, 987(D.C. Cir. 2008)(citing 44 U.S.C. § 3507(e)(1)). If
OMB approves the plan, it issues a control number for the information collection request. See
United States v. Ionia Mgmt. S.A., 498 F. Supp. 2d 477,488(D. Conn. 2007)
If a "collection of information" has not been approved by the OMB,"no person shall be
subject to any penalty ii~r failiri~ t~,> con~pl}'" ~~°ith thy; infi~rmation request. ~4~ U.S.C. ~ 3512(a).
The statute defines a "penalty" to include "the imposition by an agency or court of a fine or other
punishment; ...[or the] suspension, reduction, or denial of a license, privilege, right, grant, or
benefit." 44 U.S.C. § 3502(14). As Plaintiffs point out, in addition to these statutory
restrictions, the regulations further provide:
Whenever a member of the public is protected from imposition of a penalty under
this section for failure to comply with a collection ofinformation, such penalty may
not be imposed by an agency directly, by an agency through judicial process, or by
any other person through administrative or judicial process.
5 C.F.R. § 1320.6(d).
Plaintiffs argue that because the AFJROTC instructions and emails from HQ did not
contain OMB control numbers, the Air Force's requests for the training certifications and its
deadlines violated the PRA,and that Plaintiffs were not obligated to submit the requested

documents. Consequently, the Air Force cannot penalize them by suspending their certifications
f failing to do so.
or
Recognizing that the PRA only limits the collection of information from "employees of
the United States" in certain instances, Plaintiffs contend they are not government employees.
Because the statute does not define the term, Plaintiffs cite to several other sources in support of
their position—none of which are compelling.
12

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First, Plaintiffs cite to the ROTC implementing statute, which provides:
Notwithstanding any other provision of law, a member employed by a qualified
institution pursuant to an authorization under this subsection is not, while so
employed,considered to be on active duty or inactive duty training for any purpose.
10 U.S.C.A. § 2031(e)(5). They also cite to the contract between the school and the AFJROTC,
which provides that they are employees of the school district, rather than Air Force employees.
( PI Br. p. 12). However, neither the ROTC implementing statute nor the school contract
Pls.
addresses whether an ROTC instructor is considered a government employee for purposes of the
PRA. Thus, Plaintiffs' reliance on these two provisions is misplaced.
Next Plaintiffs cite to Cavazos v. United States, 776 F.2d 1263, 1264(5th Cir. 1985),
which involved the question of whether the government may be held liable for the negligence of
JROTC instructors under the Federal Tort Claims Act("FTCA'). That case is not applicable to
the facts or issues here, and therefore does not provide any useful guidance on what constitutes a
government employee for purposes of the PRA.
Although Plaintiffs are not government employees in a literal sense, the court remains
unpersuaded that they can seek refuge in the PRA,given the unique facts of this case. The
Supreme Court has described the PRA as limiting the collection of data from "the public." Dole,
494 U.S. at 32; see also 5 C.F.R. § 1320.6(d)(protecting the "public" from penalties associated
with failing to comply with a data collection request)(emphasis added). In this case, however,
the requested information was not sought from the "public." The Air Force is responsible for
certifying Plaintiffs in their roles as JROTC instructors, who in turn must follow JROTC
directives. (AR 331, AFJROTC 36-2002, ¶ 2.1.1; AR 339, AFJROTC 36-2002,¶ 4.4).
Additionally, the Air Force requires that the units provide military instruction, 10 U.S.C. §
2031(b)(3), and in furtherance of that instruction, the Air Force provides certain equipment,

13

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 14 of 45

which instructors are required to document and maintain. While the Air Force does not
compensate Plaintiffs directly, it compensates them indirectly because it reimburses the school
district for a portion of their salaries. (Am. Compl. ¶ 15). Thus, even though they are not
technically government employees, Plaintiffs' salaries are partially subsidized by the
government, they are caretakers of government property, and they are subject to governmental
laws and regulations. As such, they are more akin to government employees than members of
the public.
Moreover, as the Supreme Court has explained, the PRA limits the collection of
information from the public when the information sought is available from another source within
the Federal Government. See Dole, 494 U.S. at 32, 38. Here, there is no evidence that the AIM
Inventory and training certifications are available from another source within the federal
government, and a ruling in favor of Plaintiffs would jeopardize the federal government's ability
to maintain and account for public property.
In enacting the PRA,
Congress attempted to create a legislative scheme and administrative procedures by
which unnecessary and burdensome paperwork requirements would be
substantially diminished, if not eliminated.
William F. Funk, The Paperwork Reduction Act: Paperwork Reduction Meets Administrative
Law,24 Harv. J. on Legis. 1,4(1987). The documents and information sought by the Air Force
in this case can hardly be described as burdensome or unnecessary. Accordingly, Plaintiffs are
unlikely to succeed on the merits of their PRA claim.
B
.

Administrative Procedure Act

The court reviews the Air Force's decertification decision under Section 706 of the
Administrative Procedure Act("APA"). See 5 U.S.C. § 706. Pursuant to the APA,a court must
set aside agency action that is "arbitrary, capricious, an abuse of discretion,""otherwise not in
14

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accordance with law""in excess of statutory authority," or "without observance of procedures]
required by law." 5 U.S.C. § 706(2)(A),(C)
-(D). The court's review is "highly deferential" and
begins with a presumption that the agency's actions are valid. Envtl. Def. Fund v. Costle, 657
F.2d 275,283(D.C. Cir. 1981). "In exercising its narrowly defined duty under the APA,a court
must consider whether the agency acted within the scope of its legal authority, whether the
agency adequately explained its decision, whether the agency based its decision on facts in the
record, and whether the agency considered the relevant factors." Defenders of Wildlife v.
Babbitt, 958 F. Supp. 670,679(D.D.C. 1997)(some citations omitted)(citing Marsh v. Oregon
Natural Res. Council, 490 U.S. 360, 378 (1989)); see Spadone v. McHugh,864 F. Supp. 2d 181,
187(D.D.C. 2012)(citation omitted)("A decision is arbitrary or capricious under the APA if an
agency failed to provide a reasoned explanation, failed to address reasonable arguments, or failed
to consider an important aspect of the case.").
1 Plaintiffs' APA ArEuments
.
Plaintiffs "bear the burden of establishing the invalidity ofthe agency's action."
Magneson v. Mabus,85 F. Supp. 3d 221, 225 (D.D.C. 2015). Set forth below are the Plaintiffs'
APA arguments, along with the court's analysis of each argument:
a. Plaintiffs allele then complied with the operative AFM guidelines.
• Plaintiffs argue they complied with AFM 33-153, which requires submission of an
AIM Inventory once every 365 days and annual certification of training, but does not
require submission of training certificates. (Pls. PI SOF # 6). Therefore, their upload
of the 2015 training certificates, on May 7(after the Apri130 deadline), did not
violate Air Force guidelines. (See AR 158).
• Plaintiffs contend that the published policies can be "changed" only by rewriting the
publication or issuing policy memoranda. (Pls. PI Br. p. 34). They also argue that
ECO Frasier "is the only individual who is empowered by Air Force regulation to
direct ADPE compliance." (Pls. PI Br. p. 7 n.8).

15

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 16 of 45

• Plaintiffs argue that because the emails from HQ contained due dates and a training
certificate documentation requirement that purportedly conflicted with AFM 33-153,
they had no obligation to follow the directives in the emails.
• Plaintiffs also contend that they were not bound by AFJROTC 36-2001 (5/28/14)¶
4.3.1 (one of the provisions Hoffman cited in her denial of the appeal and which
requires submission of the AIM documents by Apri130), because it purportedly
conflicts with AFM 33-153. (Pls. SOF Resp. #52; AR 284; AR 143). They also
argue that even if they were bound by AFJROTC 36-2001 (5/28/14)¶ 4.3.1, they
complied because they submitted their inventories in a timely fashion.
Plaintiffs' argument that they are bound only by the AFM guidelines is unpersuasive. As
an initial matter, the AFM is not part of the Administrative Record ("AR"), and therefore this
court does not know precisely what the AFM provides, nor the extent to which it applies to
ROTC units. In contrast, the AFJROTC instructions appear in the record and the first page of
each version indicates that they are published "By Order of the Director Air Force Junior ROTC"
and that compliance with the instructions is "Mandatory." (AR 320, AFJROTC 36-2002; AR
275, AFJROTC 36-2001 (5/28/14); AR 177, AFJROTC 36-2001 (9/U10)). The court is unable
to find a reason to conclude that, as a representative of the Air Force Secretary, the Director of
the AFJROTC lacked the authority to publish AFJROTC Instructions, even if they are narrower
than the provisions in the AFM.
With respect to the emails from HQ,the court is unpersuaded by Plaintiffs' argument that
Air Force guidelines prohibited the Director from issuing the emails. Citing AFI 33-360(a
different publication than they cited previously), Plaintiffs point to a provision indicating that
changes to Air Force "policies, guidance or procedures found in official publications" can only
be made by publication of rewritten polices, interim guidance, Air Force Policy Memorandum
and other official documents, while changes by "other vehicles/mechanisms" are prohibited.
( PI Br. p. 34).
Pls.

16

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However, Plaintiffs did not raise this argument in their administrative appeal. (See AR
1 17-141). Accordingly, it is not properly before this court because generally,"under the waiver
doctrine, issues and arguments not made before the relevant military correction board or
administrative agency are deemed waived and [cannot] not be raised in a judicial tribunal."
Christian v. United States, 46 Fed. Cl. 793, 802(2000)(citations omitted); see also Spadone, 864
F. Supp. 2d at 187 n.2(refusing to consider claims not raised during the military administrative
process).
Even if Plaintiffs had raised this argument, as noted above, the Air Force manuals
Plaintiffs cite are not a part of the AR and there is nothing in the record explaining if and how the
guidelines in those manuals apply to the AFJROTC. Indeed, the manual that contains the
guidelines on how to change Air Force policies specifically references a list of Air Force
publications found in "Table 4.1, Table 4.2, and processed IAW," but those tables are not in the
record. (Pls. PI Br. p. 34). Moreover, it is unclear what constitutes a "change" to a policy. In
this case, there is a reasonable argument that the emails did not "change" the requirement that
units submit inventories between January 1 and Apri130 yearly, but instead supplemented the
written AFJROTC instructions by requiring training certificates. This court is not convinced that
this type of supplementation is valid only when issued through a formal policy revision process.
Finally, Plaintiffs have cited no legal authority that suggests the ECO is the only person
empowered to direct ADPE compliance. Thus, they have not met their burden of establishing
success on the merits with respect to their arguments that they were not required:(1)to comply
with AFJROTC instructions;(2)to comply with emails from the Director; or(3)to submit
training certificates.

17

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 18 of 45

b. Plaintiffs allege they complied with the training certificate submission
requirement.
Plaintiffs point out that the AIM inventory they uploaded into WINGS prior to the April
30 deadline in both 2014 and 2015 contained an affirmation that they had completed training.
( PI. SOF # 8; AR 36, 54, 158).8 Therefore, they argue that they satisfied the requirement
Pls.
that they submit "training certificates" by the same date.
Again, Plaintiffs did not raise this argument in their administrative appeal(see AR 117141) and, therefore cannot assert it for the first time here. See Christian, 46 Fed. Cl. at 802;
S
padone,864 F. Supp. 2d at 187 n.2.
Even if this argument were properly before this court, Plaintiffs have not pointed to any
Air Force directive to support their argument that the training certification language on the AIM
inventory satisfied the requirement to submit a "training certificate." The existence of an AIM
inventory, separate from the training certificate, indicates that the Air Force did not consider the
AIM inventory a substitute for the training certificate. Indeed, in the March 7, 2014 email that
Plaintiffs admit receiving,(AR 387, Malcomb Decl. ¶ 12; AR 4, Colley Decl. ¶ 12; Am. Compl.
¶¶ 56-57), the Director explained that ADPE equipment accountability compliance required
submission ofthe AIM inventory, as well as training certificates for both instructors. (AR 149).
The following month, Plaintiffs were placed on probation and Malcomb subsequently discussed

g Both Plaintiffs signed the AIM inventory form, which includes the following:
I certify that I have reviewed the letter appointing the ECs reflected on this
inventory account. The information contained in the appointment letter is current,
accurate, and complete. The ECF have received the required training and have
completed a physical inventory for all equipment under their jurisdiction.
( 36, 54).
AR
18

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 19 of 45

with ECO Frazier his "confusion [regarding] what documents were needed and how to upload
them into Wings." (AR 414). Several days later, Plaintiffs submitted both the training
certificates and the AIM inventory prior to the April 30, 2014 decertification deadline. (AR
158). Accordingly, Plaintiffs knew in 2014 that they had an obligation to submit the training
certificates, in addition to their AIM inventory.
c. Plaintiffs allele the 2014 probation was invalid.
• Plaintiffs submitted their AIM inventory via email and facsimile in 2014 by January
20, before the deadline. (Pls. PI SOF #7; AR 414; AR 385-87, Malcomb Decl. ¶¶ 8,
19). At that time, there was no requirement that documents be uploaded to WINGS.
( PI Br. p. 4 n.6). Therefore, Malcolmb claims that when he received the March
Pls.
7 2014 email about uploading documents to WINGS, he took no further action
,
because the email did not state that Plaintiffs were not in compliance, and Plaintiffs
should not have been placed on probation in 2014 for failing to meet deadlines.
(
Compl ¶¶ 51, 55-56).
While Plaintiffs are correct that the WINGS upload requirement was not in effect when
they faxed and emailed their AIM inventory in January 2014, Plaintiffs should have been on
notice by mid-April that the Air Force was applying the requirement retroactively. Plaintiffs
admit that when they returned from spring break in Apri12014, they saw an April 11 email. (See
AR 153, AR 4, Colley Decl. ¶¶ 14, 12; AR 386, Malcomb Decl. ¶¶ 14, 12). Because that email
specifically informed them that they had missed the April 10 ADPE suspense date, they were
therefore on notice that their January fax and email submissions had not been sufficient and that
they faced probation if they failed to take action by April 18. Yet, Plaintiffs ignored the warning
and instead waited until they were actually placed on probation to follow up. Plaintiffs' own
inaction undermines their argument that the Air Force acted in an arbitrary and capricious
manner when it:(1) warned Plaintiffs on April 11 that they faced probation if they did not
complete the ADPE suspense by April 18;(2) gave Plaintiffs four additional days beyond the
deadline in which to comply; and(3)placed Plaintiffs on probation after they failed to comply,
19

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 20 of 45

or even respond to HQ's emails. The court finds they are therefore unlikely to succeed on their
argument that the 2014 probation was invalid.
d. Plaintiffs allege then did not receive certain emails.
• Plaintiffs note they were on spring break when emails dated April 7, 2014, April 11,
2014, and April 6, 2015 were sent. (AR 4, Colley Decl. ¶ 13; AR 386, Malcomb
Decl. ¶ 13. Amen. Compl. ¶ 90).
• Plaintiffs also allege that "Colley's AFJROTC email was either disabled or deleted by
the Air Force" for "all of March and April 2015 ... the email account did not `exist."'
( PI SOF # 20)(citing(AR 506)).
Pls.
• Plaintiffs argue that even if they had received them, the emails did not sufficiently
inform them of the deadlines.
Again, Plaintiffs did not raise these arguments in their administrative appeal and
therefore they are not properly before this court. Christian, 46 Fed. Cl. at 802; Spadone, 864 F.
Supp. 2d at 187 n.2. However, had Plaintiffs raised these arguments, it is unlikely they would
have prevailed. First, their contention that the emails did not sufficiently inform them ofthe
deadlines is not supported by the record.9
Second, Plaintiffs do not explain how being away during the break excused their failure
to meet the deadlines. Plaintiffs acknowledge that in 2014, upon returning from spring break,
they saw an email--containing the subject line "ADPE Missed Suspense"—but they believed
the email did not apply to them, even though it clearly stated they were not in compliance with
the ADPE suspense and warned them that they would be placed on probation if they failed to
comply by a specified date. (AR 4, Colley Decl. ¶¶ 14, 12; AR 386, Malcomb Decl. ¶¶ 14, 12;
AR 153)(emphasis in original). They subsequently learned—well before 2015—that they were
incorrect.

y Plaintiffs admit they received at least two emails that contained specific ADPE suspense
deadlines. (See AR 153, April 11, 2014 email; AR 168, Apri124, 2015 email).
2
0

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 21 of 45

In 2015, the AFJROTC instructions required that Plaintiffs "log into WINGS and the
instructor's AFJROTC.com email at least weekly." (AR 299, AFJROTC 36-2001 (5/28/14)¶
7.2.1). Thus, any failure to check their emails during spring break in 2015 violated Air Force
instructions. Moreover, after they returned from spring break, Plaintiffs admit receiving an email
f
rom Regional Director Barron informing them they were not in compliance. (AR 168; Am.
Compl. ¶ 97; AR 5-6 Colley Decl. ¶¶ 25, 28). Thus, Plaintiffs' argument that spring break
prevented them from learning of the deadlines and requirements fails.
Plaintiffs' allegation regarding Colley's allegedly "disabled" email is similarly
unpersuasive. First, the documents upon which Plaintiffs rely do not establish that Colley's
email account was "disabled or deleted" through no fault of his own, but instead suggest that it
was disabled due to non-use. (See AR 506). On May 11, 2015, Colley emailed HQ email
support asking for a reset of his password. (Id.) HQ email support informed him that his
account no longer existed, and that "[a]11 accounts are disabled after 45 days of inactivity." (Id.)
Thus, it appears that Colley had not used his account in at least 45 days—since at least March 27,
2015, before spring break. Plaintiffs do not proffer any explanation for why Colley did not
observe or address the email issue earlier, particularly given his obligation to log in weekly. (See
AR 299, AFJROTC 36-2001 (5/28/14) 7.2.1). Nor have they asserted that Colley's email
address was the only one to which HQ sent emails. Indeed, the record indicates that on several
occasions, HQ sent emails to Malcomb or to what appears to be the unit email address. (See AR
151, 165-66, 168). Consequently, Colley's email problems did not excuse Plaintiffs' noncompliance with the suspense deadline and, therefore, Plaintiffs are not likely to succeed on their
email arguments.

21

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 22 of 45

e. The Air Force did not give Plaintiffs advance notice prior to the decertification.
While the Air Force did not give Plaintiffs advance notice of the initial decision to
decertify, it had warned them that they faced decertification and subsequently gave them notice
of the decertification decision before it became effective. Plaintiffs were warned in 2014 that
non-compliance "would" result in decertification, and in 2015 that they "could" be decertified if
they missed the April 30 deadline. (AR 153, 155-56, 168-69; see AR 165-66). After they
missed the deadline in 2015, Woods sent them a memorandum on May 18, 2015 informing them
that they would be decertified "effective the end ofthe academic year." (AR 95, 97). Plaintiffs
admit that the school year ended on June 4, 2015. (Am. Compl. ¶ 145). Thus, the decertification
did not become effective with the letter from Woods.
Moreover, Woods informed Plaintiffs oftheir right to appeal his decision, pursuant to
AFJROTC instructions, which allow fifteen days to appeal (AR 95, 97). Therefore, Plaintiffs
had through June 2, 2015 (two days before the decertification became effective) to file an appeal,
which they did with the assistance of counsel. Accordingly, Plaintiffs had an opportunity to
respond fully to the decertification decision before it became final.
f Plaintiffs challenge the initial decertification decision by Colonel Woods
.
alle~~:
• Woods relied on false information when he claimed, in the decertification
notification, that Plaintiffs had failed to meet the suspense deadline in 2015—despite
personal direction and phone calls from Barron, the Regional Director. (Pls. PI SOF
# 14)(citing AR 95, 97). Plaintiffs also appear to contend that Woods was informed
of the purported telephone call via false "testimony" that Plaintiffs were not allowed
to rebut. (Pls. PI. SOF # 13).
• Woods held a secret meeting, evidence of which is "compelling." (Pls. PI Br. p. 6 &
n.7).
• Woods must have relied on undisclosed documents to reach his decertification
decision, because Plaintiffs did not receive any documents when they requested
them. (Pls. PI Br. p. 7-8 n.7).
22

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 23 of 45

Plaintiffs are unlikely to establish arbitrary or capricious conduct as it relates to Woods
and the decertification decision. First, with respect to the alleged telephone call between Barron
and Colley, Plaintiffs noted in their appeal that the telephone call never occurred and cited to
emails from Barron admitting he had been mistaken about speaking to Plaintiffs. (AR 122; see
AR 495, 508). Thus, Hoffman was fully aware that Woods had been mistaken and there is no
indication that she relied on the alleged telephone call in deciding the appeal. Consequently,
there is no evidence that the final decision was tainted by false information.
Second,the court disagrees with Plaintiffs' contention that there is "compelling"
evidence of a secret meeting. (See Pls. PI Br. pp. 6-7 n.7). "The presumption of regularity
supports the official acts of public officers, and, in the absence of clear evidence to the contrary,
courts presume that they have properly discharged their official duties." United States v. Chem.
Found., 272 U.S. 1, 14-15 (1926). Yet Plaintiffs argue, without any evidence, that there must
have been a secret meeting because "they were not notified" and "no written record has been
provided ... to substantiate [their] alleged failure to timely provide [ADPE]documents." (Pls.
PI Br. pp. 6-7 n.7). These facts do not warrant such an assumption.
Finally, Plaintiffs provide no support for their allegation that Woods or any other official
considered documents to which the Plaintiffs were not privy prior to filing their decertification
appeals. This allegation appears to center around an email exchange between Plaintiffs and
Colonel Scotty Lewis, who was the Chief of AFJROTC Instructor Management. (See Pls. PI Br.
pp. 6-7 n.7; AR 511). After the decertification decision, Plaintiffs emailed Lewis to inquire what
documents Woods had relied upon to reach the decertification decision. (AR 511). Lewis
attached a copy of the 2014 probation email and explained that "missing [the 2015] suspense
[
deadline] is the only `documentation' needed ... [but] Wayne Barron may have a copy of the

~►~c3

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 24 of 45

actual dates utilized regarding your unit's specific situation as well as the emails sent by him and
the headquarters." (Id.) Relying on this exchange, Plaintiffs contend that "nothing in the AR
provides any indication of what Mr. Lewis or Colonel Woods might have considered to reach the
conclusions they did." (Pls. PI Br. p. 7 n.7).
The court finds this argument puzzling. The AR is replete with emails from HQ to
Plaintiffs about the suspension deadlines. While Plaintiffs contend that they did not receive
some of the emails at the time they were sent, there is no evidence in the record that Plaintiffs
failed to receive relevant or material emails prior to the date they filed their appeals. Indeed,
Plaintiffs cite to many of the emails in their appeal letters. (See AR 117-141; Amend. Compl. ¶¶
88-89). Finally, while it is clear that some of the documents contained in the AR were created
after the decertification decision, Plaintiffs have not directed the court to any evidence that might
suggest that Woods or Hoffman considered any relevant or material information of which
Plaintiffs were unaware before they prepared their appeal letters.
g. Plaintiffs challenge
Hoffman's denial of the decertification appeal, claiming:
• On June 30, 2015, Hoffman presided over a "licensing proceeding" relating to
the appeal, which they were not invited to attend. (Pls. PI. SOF # 17).
Hoffman added new charges in denying the decertification appeal, to which
they were not allowed to mount a defense. (Pls. PI SOF # 16; Pls. PI Br. p. 8).
• Hoffman ignored proof that Plaintiffs complied with the submission deadlines
by submitting their A1M inventories in compliance with AFM 33-153 in 2014
and 2015. (Pls. PI. Br. p. 8)(citing AR 408).
As with their claims about Woods, Plaintiffs have not pointed to any evidence in the
record that Hoffman held a "licensing proceeding."

24

Case 1:15-cv-01385-TSC Document 28 Filed 05
/15/17 Page 25 of 45

With respect to the new charges allegation, the record fails to support Plaintiffs'
contentions, and indicates that Hoffman relied on the same AFJROTC instruction as did Woods,
and responded to the arguments Plaintiffs' raised in their appeal letters.
Finally, as noted above, Plaintiffs' are unlikely to succeed on the merits of their argument
that compliance with AFM 33-153 alone was sufficient to avoid decertification.
h. Plaintiffs alley that the sanction of decertification was too severe
claiming:
• Decertification was unauthorized, since the AFJROTC guidelines provide that
the sanction for failing to meet ADPE deadlines is disabling a unit's account,
thereby preventing the unit from ordering new equipment. (Pls. PI SOF # 28;
Pls. PI Br. pp. 33-34; AR 285 AFJROTC 36-2001 (5/28/14)¶ 4.3.2).
• The "Chief of the Instructor Management Branch" sent Hoffman an email
indicating that Plaintiffs were the only instructors "in [the Lieutenant's]
records that [have been] specifically decertified for suspenses alone. The rest
were a combination of performance to include suspenses." (Pls. PI SOF # 29).
Plaintiffs' arguments are not compelling. First, while the ADPE instructions warn that
failure to comply with submission deadlines will result in a disabled account, the instructions do
not indicate that this is the only sanction. Indeed, the AFJROTC Instructions allow for
decertification where an instructor fails to "meet standards as prescribed by applicable ...
AFJROTC and Holm Center fHQ]instructions." (AR 323-4 AJROTC 36-2002, § 1.1.3)
(
emphasis added). Here, Plaintiffs failed to follow HQ instructions even after they were warned,
in at least two emails they received, that failure might lead to decertification. (See AR 153, 15556, 169). Plaintiffs' decision to disregard these warnings undermines their argument that the
decertification decision was arbitrary or capricious. See ElkAssocs. Funding Corp. v. U.S. Small
Bus. Admin., 858 F. Supp. 2d 1, 24(D.D.C. 2012)(rejecting motion for preliminary injunction
based on alleged APA and Due Process violations because, inter alia, the agency had afforded
the plaintiff"countless opportunities to come into compliance").

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 26 of 45

Finally, the court was not provided a copy of the email allegedly sent to Hoffman from
the Chief of the Instructor Management Branch. But even if it had been part of the record, the
email—without more—would not have been sufficient to establish that Plaintiffs were singled
out for harsher treatment.
i. Plaintiffs contend that because there was no finding of willfulness the Air
Force violated the APA by failing to allow Plaintiffs an opportunity to correct
their alleged non-compliance prior to the decertification. (Pls. PI Br.pp. 1314, 32_33) ~o
Pursuant to 5 U.S.C. § 558(c), except where there is a finding of willfulness,"an agency
must give a licensee an opportunity to demonstrate or achieve compliance with all lawful
requirements before the agency withdraws, suspends, revokes, or annuls a license." Atl. Richfield
Co. v. United States, 774 F.2d 1193, 1199(D.C. Cir. 1985)(citing 5 U.S.C. § 558(c)); see Fence
Creek Cattle Co. v. U.S. Forest Serv., No. CIV 06-1236-SU,2008 WL 4610272, at *7(D. Or.
Oct. 16, 2008)(citations omitted), aff'd, 602 F.3d 1125 (9th Cir. 2010). Plaintiffs contend the
Air Force did not make a willfulness finding, nor could it have done so because Plaintiffs
believed they were in compliance. Therefore, Plaintiffs argue, in the absence of such a finding,
the Air Force violated § 558(c) of the APA by not providing them with an opportunity to
"
achieve compliance" before their certifications were revoked.

~o plaintiffs rely on the following provisions of the APA: 5 U.S.C.~~' S58(c)("Except in cases of
willfulness ... the withdrawal, suspension, revocation, or annulment of a license is lawful only
if, before the institution of agency proceedings therefor, the licensee has been given ...(1)
notice by the agency in writing of the facts or conduct which may warrant the action; and (2)
opportunity to demonstrate or achieve compliance with all lawful requirements."); 5 U.S.C. §
551(8)("license"' includes '`an age~lcy permit, certi~hcate, approval, registration, charter,
membership, statutory exemption or other form of~permission.'"); 5 LJ.S.C. ~ 558(b)(``A sanctio~l
nay not be imposed. or a substantive rule or order issued. except within jurisdiction delegated to
the agency and as authorized by law.'').
26

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 27 of 45

Whether or not this provision applies to the facts presented here, Plaintiffs are unlikely to
succeed on the merits of this claim. First, the record belies Plaintiffs' argument that the Air
Force failed to provide Plaintiffs an opportunity to "achieve compliance" prior to decertification.
Fence Creek Cattle Company v. United States Forest Service, No. CIV 06-1236-SU, 2008 WL
4610272, at *8(D. Or. Oct. 16, 2008), aff'd, 602 F.3d 1125 (9th Cir. 2010)is instructive. There,
plaintiffs argued that the Department of Agriculture("DOA")violated their APA rights by
revoking a grazing permit without allowing them an opportunity to achieve compliance. The
court disagreed, noting:
It was not until after several oral and written communications that agency action
was taken. On numerous occasions, both informally and through written notice,
plaintiff was apprised of the facts and conduct at issue and was given the
opportunity to demonstrate that it had complied with the requirements of the
grazing permit.
I *7.
d.
Because they ignored the warnings, the plaintiffs in Fence Creek were unable to establish
that the DOA violated § 558(c)'s prohibition against revoking a license prior to allowing the
licensee an opportunity to cure. Plaintiffs here, like those in Fence Creek, were provided
numerous notices of their non-compliance and were warned of potential negative consequences,
yet ignored the warnings. Therefore, the court finds that Plaintiffs' argument that the Air Force
violated § 558(c)'s prohibition on revoking a license prior to allowing a licensee to "achieve
compliance" is unlikely to succeed on the merits.
Moreover, the court disagrees that the agency failed to make a willfulness finding.
Indeed, while he did not quote the text of the instruction, Woods determined that Plaintiffs
violated AFJROTC Instruction 36-2002 ¶ 3.1.2.2.5, which provides that "decertification may be
a result of ...[a]n incident of willful misconduct." (AR 336, 143; see AR 336, AFJROTC 36-

27

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 28 of 45

2002 ¶ 3.1.2; id.¶ 3.1.2.2). On appeal, Hoffman found that Plaintiffs violated the same
instruction. (AR 143). Thus, the record establishes that the Air Force did make a willfulness
f
inding and Plaintiffs are not entitled to the protections of 5 U.S.C. § 558(c).
Plaintiffs are also incorrect that a willfulness finding is impossible because they believed
they were in compliance. "[A] violation is `willful' if the violator `(1) intentionally does an act
which is prohibited,[]irrespective of evil motive or reliance on erroneous advice, or(2)acts
with careless disregard of statutory requirements."' Potato Sales Co. v. Dept. ofAgric., 92 F.3d
800, 805 (9th Cir. 1996)(citation omitted); see Schwebel v. Orrick, 153 F. Supp. 701, 705
(
D.D.0 1957)("Willfulness ...has been interpreted as meaning the intentional doing ofthe act
charged.")(citing Air Transport Assocs. v. Civil Aeronautics Bd., 199 F.2d 181, 186(1953)),
a
ff"d on other grounds, 251 F.2d 919(D.C. Cir. 1958). Because a willfulness finding does not
require evidence of ill intent, under the facts presented here it is irrelevant that Plaintiffs believed
they had legitimate reasons for failing to meet the suspense deadline or that they believed they
had already submitted the necessary documentation. There is evidence that they "act[ed] with
careless disregard of[Air Force] requirements." Potato Sales Co, 92 F.3d at 805.
j. Plaintiffs allege that the Air Force failed to follow its own published guidelines
f decertification, claiming:
or
• The Air Force was required to consider "overall performance," including their
school performance evaluations and letters of support from the school
principal, prior to decertification, but failed to do so. (Pls. PI Br. p. 36-39;see
AR 440-475).
• The Air Force was required to complete a Form 98 evaluation prior to
decertification, but failed to do so. (Pls. Br. p. 26 n.18; id. pp. 36-39; Am.
Compl. ¶ 203r).
Plaintiffs misread the cited instructions regarding decertification. First, the instructions
allow for decertification either when the instructor's "overall performance ... is unsatisfactory"

28

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 29 of 45

or when there is a finding of willfulness, as there was here. (AR 336, AFJROTC 36-2002 ¶
3.1.2, ¶ 3.1.2.2; ¶ 3.1.2.2.5). Thus, there is no requirement that a consideration of"overall
performance" precede a decertification decision.
With regard to the Air Force's failure to complete Form 98 prior to decertification, the
Air Force considers the Form 98 and the associated performance review process "to be adequate
protection for instructors from unfair evaluation" and a school official or the unit's senior ROTC
officer "may initiate" a Form 98 when an instructor's "performance or conduct does not meet
acceptable standards or is exemplary." (AR 337, AFJROTC 36-2002 ¶ 3.7.1; AR 339
AFJROTC 36-2002 ¶ 4.6.3.2.1.).
In support of their Form 98 argument, Plaintiffs first rely on AFJROTC 36-2002 ¶ 2.3.1,
which provides:
When a staff visit report, unit evaluation, or other official source of information
( school or civil investigation)indicates the instructor's performance or conduct
i.e.,
is less than overall Satisfactory; Holm Center/JR will inform school officials and
request they consider taking corrective action, including evaluation of whether the
continued employment ofthe instructor is appropriate. If school officials do not or
are not able to take corrective measures, Holm Center will process the case [using
one oftwo options].
( 334).
AR
This provision, by its terms, appears inapplicable to the conduct at issue here because it
seems to contemplate school related conduct that school officials are authorized to correct. And
even if this case did involve such conduct, HQ's options do not require use of Form 98.
Plaintiffs next cite to AFJROTC 36-2002 ¶ 3.8, which involves "action before
[
d]ecertification," and which provides two distinct paths to decertification. (AR 338). Under
paragraph one, if a "staff visit or other official source of information indicates the instructor's
performance or conduct is overall unsatisfactory and corrective action directed by[HQ]or

29

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 30 of 45

school officials is insufficient to correct,[HQ] will process the case under 3.1.2,"—the
instruction discussed above permitting decertification if there is a finding of willfulness. (AR
338 AFJROTC 36-2002 ¶ 3.8.1; AR 336, AFJROTC 36-2002 ¶ 3.1.2; ¶ 3.1.2.2.5).
Assuming arguendo that paragraph one applies here, HQ complied with its requirements.
Specifically, HQ's attempted corrective action in the form of email notifications failed to bring
about compliance. Because these efforts were "insufficient to correct" the problem, HQ made a
willfulness finding and proceeded accordingly. It did not need to complete a Form 98 to process
a decertification based on willfulness.
Paragraph two of AFJROTC 36-2002 ¶ 3.8 provides that HQ "will initiate action to
decertify an instructor whenever it is required because of an Unsatisfactory rating on an
AFJROTC Form 98." (AR 338). Thus, Form 98 is not required in order to initiate
decertification under paragraph two; rather, decertification is mandated if the Form 98 evaluation
and appeal process ends with an unsatisfactory rating. (See id.)
2 Summary
.
The court finds that the Plaintiffs' APA claim is not likely to succeed on the merits
because the crux of that claim relies on arguments unsupported by the record, and because it asks
this court to do what it is not permitted to do: "serve as a super correction board that reweighs
the evidence," Charette v. Walker, 996 F. Supp. 43, 50(D.D.C. 1998)(citation omitted), and
"
substitute its judgment for that ofthe military departments ...." Christian v. United States, 46
Fed. C1. 793, 801 (2000)(citing Heisig v. United States, 719 F.2d 1153, 1156(Fed. Cir. 1983)).
C
.

Privacy Act

" Privacy Act regulates the collection, maintenance, use, and dissemination of
The
information about individuals by federal agencies." Wilson v. Libby, 535 F.3d 697, 707(D.C.

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 31 of 45

Cir. 2008)(internal quotation marks and citations omitted). The Act requires that agencies
"
maintain all records which are used by the agency in making any determination about any
individual with such accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in the determination." 5 U.S.C. § 552a(e)(5). An
individual may request access to and amendment of an agency's records or information
pertaining to him,see id. § 552a(d), and may file a civil action if the agency "makes a
determination ...not to amend an individual's record in accordance with his request" or if the
agency fails to maintain accurate records about that person and the agency subsequently makes
an adverse determination based on the inaccurate records. Id. § 552a(g)(1)(A); 552a(g)(1)(C).
Plaintiffs bear the burden of proving any alleged violations ofthe Privacy Act were
intentional or willful. See Albright v. United States, 732 F.2d 181, 189(D.C. Cir. 1984). Here,
Plaintiffs appear to argue that the Air Force violated the Privacy Act by maintaining inaccurate
records associated with the misinformation regarding whether Regional Director Barron spoke
with Plaintiffs via telephone about their late ADPE documents.
Plaintiffs' argument fails because "an agency need not keep perfect records, but must act
reasonably to assure their accuracy." Dickson v. Office ofPers. Mgmt., 1991 WL 423968, at * 15
(
D.D.C. Aug. 27, 1991). Here, the Air Force records contain an email from Barron conceding
that he was mistaken and that he did not speak with Plaintiffs about the ADPE compliance
deadlines. (AR 495, 508). Thus, the inaccurate information was corrected, Plaintiffs discussed
the correction in their appeal and, as noted above, there is no indication that Hoffman relied on
this misinformation when she considered the appeal. Thus, Plaintiffs have not established that
the Air Force violated the Privacy Act by engaging in willful or intentional conduct by failing to

31

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 32 of 45

"
assure fairness in any determination relating to [Plaintiffs'] qualifications, character, rights ...
or benefits." 5 U.S.C. § 552a(g)(1)(C)."
D
.

Due Process Claim
Plaintiffs contend that the initial decertification decision violated their due process

rights because Woods allegedly held a secret hearing, declined to provide Plaintiffs evidence
supporting the decertification decision and denied them an opportunity to confront "false
evidence." (Pls. PI Br. pp. 6-8 & n.7). As discussed above, these allegations are not supported
by the record. Thus, Plaintiffs are unlikely to succeed on the merits of their due process claim,
as it relates to these allegations.
Next, Plaintiffs contend that the Air Force failed to provide Plaintiffs with an
opportunity to be heard before they were decertified. Assuming for the purposes of argument

To the extent Plaintiffs allege violations of the Privacy Act over the inclusion of documents
in the record containing "gossip collected off the Internet," Plaintiffs are unlikely to succeed on
the merits. (See Pls. PI SOF # 19). Plaintiffs point out that the record contains an email dated
July 13, 2015 from Woods to an unidentified "team." (AR 496-502). Included in the email is
what Woods described as "antidotal [sic] information," consisting o£ (1)an article about an
interview Colley apparently gave to a local media outlet regarding the decertification; and (2)
apparent social media comments posted on the Facebook page for the media outlet that published
the article.
Under the Privacy Act, opinions do not constitute "inaccurate" information. See Allmon v.
Fed. Bureau ofPrisons,605 F. Supp. 2d 1, 7(D.D.C. 2009)("The Privacy Act is not a means to
challenge ... opinions or judgments ....")(citations omitted); Graham v. Hawk, 857 F. Supp.
38, 40(W.D. Tenn. 1994)("[R]ecords are maintained with adequate fairness if they accurately
reflect the nature of the evidence," i.e., indicate that the information is a hearsay report from an
unnamed informant.), aff'd, 59 F.3d 170(6th Cir. 1995); Kleiman v. Dept. ofEnergy, 956 F.2d
335, 337-38(D.C. Cir. 1992)("[T]he Privacy Act allows for amendment of factual or historical
errors[, the statute] is not ... a vehicle for amending the judo of federal officials or others
as those judgments are reflected in records maintained by federal agencies.") (emphasis in
original)(alterations and some citations omitted)(citing Rogers v. United States Dept ofLabor,
607 F. Supp. 697,699(N.D. Cal. 1985)).
Moreover, the emails containing these opinions were sent after Hoffman denied Plaintiffs'
appeal, and could not have tainted the administrative process. (See AR 496-502).
32

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that Plaintiffs had a constitutionally protected interest in their certifications, 12 their due process
claim is still unlikely to succeed on the merits. Due process requires that an aggrieved party be
allowed an opportunity to be heard prior to the effective date of the alleged deprivation. See,
e.g., Opp Cotton Mills v. Adm'r of Wage &Hour Div. ofDept ofLabor, 312 U.S. 126, 152-53
(
1941)("The demands of due process do not require a[n opportunity to be heard], at the initial
stage or at any particular point or at more than one point in an administrative proceeding so long
as the [opportunity to be heard] is [permitted) before the final order becomes effective.")
(
emphasis added); Myersville Citizensfor a Rural Cmty., Inc. v. F.E.R.C., 783 F.3d1301, 1327
(
D.C. Cir. 2015)("[A] rebuttal opportunity that arises before the issuance of a final order is
sufficient for purposes of due process."); Brown v. United States, 367 F.2d 907, 911 (10th Cir.
1966)("It is sufficient to satisfy the demands of due process if a[n opportunity to be heard] is
provided for before a final order becomes effective.")(emphasis added). In order to ensure that
the opportunity to be heard serves "its full purpose, then, it is clear that it must be granted at a
time when the deprivation can still be prevented," and here, Plaintiffs were allowed this
opportunity via the appeal process prior to the effective date of the decertification. See Ford
Motor Co. v. Coleman,402 F. Supp. 475, 496(D.D.C. 1975). Accordingly, Plaintiffs are not
likely to succeed on the merits of this due process claim.

~ 2 Plaintiffs are unlikely to:(1)demonstrate a property interest sufficient to trigger due process
protections; or(2)show a constitutionally protected liberty interest. See Crooks v. Mabus, 845
F.3d 412, 418-19(D.C. Cir. 2016)(examining Navy ROTC regulations and finding no protected
property interest and a doubtful liberty interest where former ROTC instructor challenged
decertification). In any event, the court need not reach these issues given its finding that
Plaintiffs are unlikely to succeed with their argument that the Air Force's decertification
procedures failed to comply with due process.

K~j

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 34 of 45

E
.

FTCA

Plaintiffs did not address the likelihood of success on their FTCA claim. Therefore, the
court finds that Plaintiffs have not met their burden with respect to this claim.
F
.

Jurisdiction Over Plaintiffs' Remaining Arguments and Claims

In their Motion for Preliminary Injunction, Plaintiffs raised claims that did not appear in
their Amended Complaint. For example, Plaintiffs' Motion challenges the Air Force's authority
to decertify them because, in their view, no statutory or regulatory authority for decertification of
JROTC instructors exists. (See Pls. PI Br. pp. 14-26; see id. p. 16) Plaintiffs also argue that the
AFJROTC instructions are unenforceable because they constitute "regulations" that were not
properly promulgated through notice and comment. (Id. pp. 27-32).
" jurisdiction to exist over the instant motion for injunctive relief, the motion must be
For
closely related to the facts, legal issues, and parties addressed in the plaintiffs' amended
complaint[]." Adair v. England, 193 F. Supp. 2d 196, 201 (D.D.C. 2002)(citation omitted).
Here, Plaintiffs' challenges to the statutory authority for decertification and to the legitimacy of
the AFJROTC regulations are not "closely related" to the claims or legal issues raised in their
Amended Complaint. Accordingly, the court is without jurisdiction to consider the additional
arguments raised for the first time in their motion for injunctive relief.
2 REMAINING INJUNCTIVE RELIEF FACTORS
.
Having found that Plaintiffs are not likely to succeed on the merits, the court must also
consider whether:(1)Plaintiffs would suffer irreparable injury absent the requested injunctive
relief;(2)the injunctive relief would further the public interest; and(3)the balance of equities
tips in favor of the Plaintiffs. Winter, 555 U.S. at 20. Courts in this Circuit have used a "sliding
scale" approach in analyzing these factors, meaning a particularly strong showing in one could

34

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outweigh weakness in another. See Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011).
However, it is unclear whether this approach survives after the Supreme Court's ruling in Winter
v. Natural Resources Defense Council, Incorporated, 555 U.S. 7(2008), which "suggests if not .
.. hold[s] `that a likelihood of success is an independent, free-standing requirement for a
preliminary injunction."' Sherley, 644 F.3d at 393.
Under either approach, however, the court finds that Plaintiffs are not entitled to
preliminary relief, as they are unable to meet the Winter test because they are unlikely to succeed
on the merits, and because, under the "sliding scale" approach, the equities tip in favor of
denying preliminary relief.
A Public Interest
.
Although Plaintiffs have proffered evidence of some public support for their case, the
court finds that the public interest would not be served by granting injunctive relief because the
impact of Plaintiffs'failure to follow directives from HQ is significant. The public has an interest
in the manner in which the military is represented, and in the perception and appreciation of its
adherence to and compliance with regulations and orders, even by those serving in a civilian
capacity.
B Irreparable Harm
.
Plaintiffs argue that, given the revocation of their AFJROTC certifications, they face
imminent irreparable harm because their teaching certifications will be revoked. The school
district sent each Plaintiff a "Notice ofIntent to Dismiss," informing them that the loss of their
JROTC certifications has made them "unemployable" by the school system. (ECF 20, Pls. First
PI Br. at ECF pp. 55, 79). Subsequently, the California Commission on Professional

35

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 36 of 45

Competence scheduled a hearing for May 23, 2017 to consider terminating Colley due to his
failure to maintain his JROTC certification. (ECF No. 23, Pls. Mot. for Tele. Status p. 3).'3
The court finds that the anticipated loss ofthe teaching certifications is not an irreparable
injury. Assuming the California Commission revokes their teaching credentials, Plaintiffs have
not shown that they would be unable to regain those credentials and regain employment with the
school district upon reinstatement of their certifications. See Chaplaincy ofFull Gospel
Churches v. England,454 F.3d 290, 297(D.C. Cir. 2006)(noting that "the injury must be
beyond remediation"); Davis v. Billington, 76 F. Supp. 3d 59, 65 (D.D.C. 2014)(finding no
irreparable harm because plaintiff had "no concrete proof that the vacancy for Deputy Assistant
or some other comparable position will not be available when [the litigation] ultimately
resolved.").
In contrast, there is evidence that, without injunctive relief, Plaintiffs would suffer
f
inancial harm because they have no legal recourse to recoup their lost salaries from either the
state or the Air Force.14 However, the loss of employment income does not necessarily establish
irreparable harm--maven when the loss is unrecoverable. In Sampson v. Murray, 415 U.S. 61,92
n.68(1974)the Supreme Court noted in dicta that "cases may arise in which the circumstances
surrounding an employee's discharge, together with the resultant effect on the employee, may so
far depart from the normal situation that irreparable injury might be found." The Court
cautioned, however,"[s]uch extraordinary cases are hard to define in advance oftheir
occurrence." Id. The court finds that this is not such an extraordinary case, especially given that

3 It is not clear whether a hearing has been set on Malcomb's teaching certification.
14 Despite demanding lost pay and benefits in their Amended Complaint, Plaintiffs admit that
the APA does not provide for of monetary damages. (See Am. Compl. ¶ 245; ECF No. 16, Pls.
First PI Br. p. 3).
36

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Plaintiffs are retired military officers who appear able to seek other employment. See Billington,
7 F. Supp. 3d at 65-66 (finding plaintiff's inability to recover back pay from his former
6
employer at his primary job did not constitute irreparable harm for preliminary injunction
purposes where plaintiff still received a military pension, as well as income from a second job).
C Balancing of the Equities
.
In balancing the equities, the court "weighs the harm to [Plaintiff) if there is no injunction
against the harm to the [Defendant] if there is." Pursuing America's Greatness v. FEC,831 F.3d
500, 511 (D.C. Cir. 2016)(citing Winter, 555 U.S. at 25-26). Here,"the [Defendant's] harm and
the public interest are one and the same, because the government's interest is the public interest."
Pursuing America 's Greatness, 831 F.3d at 511 (emphasis in original)(citing Nken v. Holder,
556 U.S. 418,435 (2009)). In other words,"in the context of a stay, assessing the harm to the
opposing party and weighing the public interest `merge when the Government is the opposing
party."' Pursuing America's Greatness, 831 F.3d at 511 (quoting Nken, 556 U.S. at 435).
Applying this standard, the court finds that balancing the equities supports denying
injunctive relief because:(1)Plaintiffs are unlikely to succeed on the merits;(2)Plaintiffs have
not established that they will suffer irreparable harm; and (3)the public interest will not be
served, and may in fact be harmed by forcing the Air Force to temporarily reinstate Plaintiffs'
certifications. Moreover, there is legal authority indicating that a governmental entity may be
harmed where an injunction would require it to welcome back an expelled individual, because
doing so would "undermin[e] the authority of the [entity] to take disciplinary action for what it
believed to be a serious threat to ... property." Boucher v. Sch. Bd. ofSch. Dist. ofGreenfield,
134 F.3d 821, 826-27(7th Cir. 1998)(denying preliminary injunction to expelled student whom

37

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 38 of 45

school officials accused of endangering school property after he distributed, on campus, copies
of his publication explaining how to hack the schools' computers).
Finally, the D.C. Circuit has warned that under normal circumstances,"a preliminary
injunction should not work to give a party essentially the full relief he seeks on the merits" and
preliminary relief here would do just that. See Dorfmann v. Boozer,414 F.2d 1168, 1173 n.13
(
D.C. Cir. 1969)(citing Selchow &Righter Co. v. Western Printing &Lithographing Co., 112
F.2d 430(7th Cir. 1940)). Accordingly, the court finds that a preliminary injunction is not
appropriate in this case and will deny the motion.

C VENUE
.
1 LEGAL STANDARD
.
Plaintiffs' APA and constitutional claims are governed by the general federal venue
provision 28 U.S.C.A. § 1391,15 under which a civil action against either the United States or one
of its officials acting in her official capacity may be brought
in any judicial district in which(A)a defendant in the action resides,(B)a substantial part
ofthe events or omissions giving rise to the claim occurred, or a substantial part ofproperty
that is the subject of the action is situated, or(C)the plaintiff resides if no real property is
involved in the action.
28 U.S.C.A. § 1391(e)(1). In this case, the named individual defendants involved in the
decertification and appeal—Woods and Hoffman—reside in Alabama, and a substantial part of
the events giving rise to this action occurred there, as well as in California, where Plaintiffs are
located. Thus, under the general venue provision, venue in either state is appropriate.

15 As noted above, Plaintiffs have not asserted any facts to support a Privacy Act claim.
Therefore, the Privacy Act's venue statute—which specifically provides for venue in the District
of Columbia—does not factor into the court's analysis. Even if the court were to consider the
Privacy Act venue statute, the court still has the authority to transfer venue under 28 U.S.C. §
1406.
38

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FTCA claims "may be prosecuted only in the judicial district where the plaintiff resides
or wherein the act or omission complained of occurred." Patel v. Phillips, 933 F. Supp. 2d 153,
165(D.D.C. 2013)(quoting 28 U.S.C. § 1402(b)). Thus, under the FTCA,venue is also
appropriate in either Alabama or California.
Although the only connection to the District of Columbia appears to be that the Secretary
of the Army is located nearby at the Pentagon, in Virginia, and her official address is in the
District of Columbia(ECF No. 12, Defs. Reply p. 1 & n.l), the Air Force did not argue in its
opening brief that venue is improper in this district, but instead urged the court to transfer the
case pursuant to 28 U.S.C. § 1404. In its reply, however, the Air Force argued that venue in this
district is improper,(ECF No. 12, Defs. Reply pp. 1-4), but still failed to cite to 28 U.S.C. §
1406, the appropriate provision governing actions filed in the wrong venue, and which states:
The district court of a district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the interest ofjustice, transfer such
case to any district or division in which it could have been brought.
28 U.S.C.A. § 1406(a). While this provision allows for dismissal of a case filed in the wrong
venue, the Air Force has not requested dismissal, but instead transfer under Section 1404,
preferably to Alabama or California. 16
In deciding a Section 1404(a) venue motion, a court must first determine whether the
transferee district is one where the action "might have been brought." 28 U.S.C. § 1404(a). As

16 Even if the Air Force had requested dismissal, the court would have denied the request
because, inter alia, the Air Force did not raise the venue argument in its principal brief, and
therefore waived it. See Fed. R. Civ. P. 12(b)("Every defense to a claim for relief in any
pleading must be asserted in the responsive pleading if one is required"). Additionally, dismissal
would not serve the interests ofjustice.

39

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discussed above, venue in either Alabama or California is proper in light of Plaintiffs' claims,
and both these options satisfy the requirements of Section 1404.
Next, the court must consider "the convenience of the parties and witnesses," as well as
" interest ofjustice" when considering transfer. 28 U.S.C. § 1404(a). While the
the
convenience ofthe parties, convenience ofthe witnesses, and the interests ofjustice
are the three principal factors to consider in determining whether to transfer a case,
courts have also considered various other factors, including the private interests of
the parties and the public interests of the court, as additional considerations
`protected by the language of[the change of venue statute].
Valley Cmry. Pres. Comm'n v. Mineta, 231 F. Supp. 2d 23, 44(D.D.C. 2002)(citation omitted).
The statute "is intended to place discretion in the district court to adjudicate motions for transfer
according to an `individualized, case-by-case consideration."' Stewart Org., Inc. v. Ricoh Corp.,
487 U.S. 22, 29(1988)(citation omitted). "When the events occur in more than one district, a
court can consider which jurisdiction has the stronger factual nexus to the claims." Miller v.
Insulation Contractors, Inc., 608 F. Supp. 2d 97, 102(D.D.C. 2009)(citation omitted).
2 ANALYSIS
.
A Private Interest Factors
.
In deciding whether to transfer a case, a court considers six "private interest" factors:
1)the plaintiffs choice of forum; 2) the defendant's choice of forum; 3) whether
the claim arose elsewhere; 4)the convenience of the parties; 5)the convenience of
the witnesses, particularly if important witnesses may actually be unavailable to
give live trial testimony in one of the districts; and 6)the ease of access to sources
of proof.
Louis v. Hagel, 177 F. Supp. 3d 401, 406(D.D.C. 2016)(citations omitted). Defendants argue
that four of the six private interest factors support venue in Alabama or California:(1)
defendant's preferred forum;(2)location where the claim arose;(3)convenience ofthe parties;
and (4)ease of access to sources of proof.

40

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 41 of 45

The court agrees that two of Defendants' factors undoubtedly weigh in favor of transfer
to Alabama or California: defendants' preferred forum and location where the claim arose. In
contrast, the convenience of the parties does not necessarily weigh heavily in favor of any district
because Plaintiffs contend, and the Air Force does not dispute, that the case will be decided on
the administrative record. (ECF No. 10, Pls. Resp. to Defs. Mot. to Dismiss p. 95). On the other
hand, this factor might come into play if a court determined that a hearing was necessary and
ordered the parties to appear in person. While such a scenario is unlikely, were it to materialize
in this district, both sides would be inconvenienced. On the other hand, if a hearing were held in
California, the Air Force might be inconvenienced, while a hearing in Alabama would
inconvenience the Plaintiffs. Although Plaintiffs are retired from the military, they assert that
they are experiencing "substantial financial hardship." (ECF No. 13, Pls. Sur-reply p. 4).
Consequently, the court finds that the convenience of the parties factor tips in favor oftransfer to
California.
The court disagrees that the ease of access to proof factor weighs in favor of transfer.
Although the Air Force contends that records in this case are located in Alabama(see ECF No. 6,
Defs. Mot. to Dismiss p. 44), that fact alone is of lesser significance given that the decision will
be largely based on the record. Although neither side addressed it, the convenience of the
witnesses factor likewise does not weigh in favor of either side for the same reason.
With respect to the final private interest factor, Plaintiffs are correct that their choice of
f
orum is ordinarily accorded "substantial deference." Shapiro, Lifschitz &Schram, P.C. v.
Hazard, 24 F. Supp. 2d 66, 71 (D.D.C. 1998)(citing Gross v. Owen, 221 F.2d 94,95(D.C. Cir.
1955)). That deference is lessened here, however, because Plaintiffs do not reside in this district
and "the relevant events occurred elsewhere." Id.(citation omitted). Additionally, there is no

41

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reason to defer to the Plaintiffs' choice of forum, since this case does not involve "a national
issue [in which] federal officials in the District of Columbia had significant involvement in the
agency action." Intrepid Potash-New Mexico, LLC v. U.S. Dept ofInterior, 669 F. Supp. 2d 88,
96(D.D.C. 2009); see Sierra Club v. Flowers, 276 F. Supp. 2d 62,67(D.D.C. 2003)(citation
omitted)(refusing to give deference to plaintiff's choice offorum because the District of
Columbia had "no meaningful ties to the controversy and no particular interest in the parties or
subject matter" where the dispute involved Florida environmental laws).
Accordingly, on balance, two private interest factors (defendant's choice offorum and
location where the action arose) heavily favor transfer to Alabama or California, and the
convenience of the parties factor slightly weighs in favor of transfer to California. The three
remaining private interest factors do not weigh in favor of any district, but the court notes that
Plaintiffs have indicated a preference for transfer to California should the court grant the Air
Force's motion. (Pls. Response to Defs. Mot. to Dismiss p. 95).
B Public Interest Factors
.
Next, the co«rt m~~st consider the followinb "public interest" factors:
(1) the t1•ausferee foi•uin's familiarity with the governing laws .. .;(2) the relative
congestion oi~the calendars of tl~e potential. transferee acid transferor courts; and
( the local interest in clecidin~~ local cimtroversies at home.
3)
Louis, 177 F. Supp. 3d at 408 (citations omitted). Defendants contend, without elaboration, that
``at least two" factors weigh in favor oftransfer: the transferee's familiarity with the governing
law aild the local intcr~st in d~;cidin~~ local controversies at hone. Plaintitfis likewise did not
address these :factors, but arctic that transfer will fiu•tlier delay the case and. increase their
financial losses.

42

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Applying the public interest factors, the court disagrees w~itl~ Defendants' argl~ment
regarding the transfe.i•ee's familiarity with the governing law factor-. With respect to
"
adjudication of federal claims,...the federal courts comprise a single system in which each
tribunal endeavors to apply a single body of law." In re Korean Air Lines Disaster ofSept. 1,
1983, 829 F.2d 1171, 1175 (D.C. Cir. 1987)(citation and alterations omitted), aff'd sub nom.
Chan v. Korean Air Lines, Ltd., 490 U.S. 122(1989). This court has no reason to diverge from
" principle that the transferee federal court is competent to decide federal issues correctly."
the
Nat'l Wildlife Fed'n v. Harvey, 437 F. Supp. 2d 42,49(D.D.C. 2006)(citations omitted).
Consequently, the familiarity with the governing law factor does not weigh in favor of either
party.
Without any evidence of the ``relative congestio~~ ofi the calendars" in the potential
disU~icts, this factor does not favor venue in any particular district. Moreove►-, Plai~~tiffs'
argument that transfer would unduly delay the resolution of tl~e case is based solely on
speculation.
With respect to the ~tinal factor, "local interest in deciding local controversies at home,"
the court agrees that transtier is appropriate. The California Commission on Professional
Competence has scheduled a hearing to consider terminating Colley, and the Hart School District
claims in its "Notice of Intent to Dismiss" that the loss of the JROTC certifications has made
Plaintiffs "unemployable" by the school system. (ECF No. 23, Pls. Mot. for Tel. Status p. 3; Pls.
P Br. at ECF pp. 55, 79). Thus, the outcome of this litigation will directly impact citizens of
I
California. See Intrepid Potash-New Mexico, LLC, 669 F. Supp. 2d at 98-99 (transferring case
after finding that controversy involving approval of permits to drill oil and gas was "more local
in nature and centered on New Mexico [rather] than on the District of Columbia"). Moreover,

43

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there has been media coverage in California regarding the case, and state residents have
expressed strong opinions on the matter.
Therefore, weighing the private interest facrors and the public interest factors, the court
finds that the balance tips in favor of transfer to California. Plaintiffs reside in California, it is
thc: Air Force's prefi:rced choice of~forum, and some cif the conduct at issue occurred there.
California may be a more convenient :forum for the Plainti~lfs, and the residents aFtllat state
undoubtedlti~ have a ccrosiderable '`local interest in deciding local controversies at borne." See
Bergmann v. U.S. Dept of Transp., 710 F. Supp. 2d 65, 75 (D.D.C. 2010)(transferring case to
Michigan because, inter alia, "there can be no doubt that the [highway construction] projects at
issue in this case will directly affect the lives of Michigan residents").
Conversely, there is nothing in the record indicating that the parties or the facts at issue
are connected to this district. Secs Miller v. Insulation Contractors, Inc., 608 F. Supp. 2d 97, 102
(
D.D.C. 2009)(citations omitted)("When the events occur in more than one district, a court can
consider which jurisdiction has the stronger factual nexus to the claims.")
As the District of Columbia Circuit has warned:
Courts in this circuit must examine challenges to . . .venue carefully to guard
against the danger that a plaintiff might manufacture venue in the District of
Columbia. By naming high government officials as defendants, a plaintiff could
bring a suit here that properly should be pursued elsewhere.
Cameron v. Thornburgh, 983 F.2d 253, 256(D.C. Cir. 1993). Given this admonition, and the
private/public interest factors that weigh in favor of transfer, this court finds that the interests of
justice will be served by transferring this action to the Central District of California.

D CONCLUSION
.
For the reasons set forth above, the court will DENY Plaintiffs' motions and GRANT

.
.

Case 1:15-cv-01385-TSC Document 28 Filed 05/15/17 Page 45 of 45

Defendants' motion to transfer this case to California.

Date: May 15, 2017

Taa~ya s Chutkaa
TANYAS.CHUTKAN
United States District Judge

45