1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CARL FOSTER,

Plaintiff,

v.

RAY MABUS, Secretary of the Navy, et al.

Defendants.

Civil Action No. 11-1931 (BAH)

Judge Beryl A. Howell

MEMORANDUM OPINION

Plaintiff Carl M. Foster brings this action against Ray Mabus, Secretary of the Navy, 

Rear Admiral David F. Steindl of the United States Navy, and Major General Raymond C. Fox 

of the United States Marine Corps under the Administrative Procedure Act (“APA”), 5 U.S.C.

§ 702 et seq., seeking injunctive relief. The plaintiff is a former instructor in the Marine Corps 

Junior Reserve Officer Training Corps (“MCJROTC”) and the Navy Junior Reserve Officer 

Training Corp (“NJROTC”) but was decertified as an instructor following allegations of 

misconduct. The plaintiff seeks vacatur of these decertification actions and reinstatement of his 

certification as an instructor in both the MCJROTC and NJROTC programs.

I. BACKGROUND

The plaintiff enlisted in the United States Marine Corps in September of 1977 and was 

ordered to active duty on May 24, 1978. Compl. ¶ 3, ECF No. 1; Administrative Record (“AR”) 

at 131, ECF No. 6. The plaintiff served over twenty-one years on active duty in primarily supply 

and logistics positions before retiring as a Master Sergeant (E-8) in October 1999. Compl. ¶ 4; 

AR at 131. In April 1999, shortly before his retirement from active duty, the plaintiff was 

certified as an MCJROTC instructor for a period of four years. Compl. ¶ 5; AR at 128.
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The Junior Reserve Officers’ Training Corps (“JROTC”) is a military service program in 

high schools throughout the nation, sponsored by the Armed Forces. See 10 U.S.C. § 2031. In 

the Navy, the program is known as the NJROTC, and in the Marine Corps the program is known 

as the MCJROTC. Compl. ¶ 7; Def.’s Statement of Material Facts as to Which There Is No 

Genuine Dispute (“Def.’s SMF”) ¶ 2, ECF No. 8. The plaintiff was hired to be an MCJROTC 

instructor at Amite High School in Amite, Louisiana in December 1999. Id. ¶ 9; Def.’s SMF 

¶ 4.

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 The Marine Corps recertified the plaintiff as an MCJROTC instructor twice more, in 2003 

and 2007 (each for a period of four years), and he continued as an instructor at Amite High 

School throughout this time. AR at 113, 123. On April 17, 2010, the NJROTC certified the 

plaintiff as a Naval Science Instructor for a period of three years. Id. at 217.

A. First Decertification Proceeding

On April 22, 2009, the plaintiff submitted two purchase request documents (“PRDs”) for 

the use of MCJROTC funds to support leadership training for five cadets at Louisiana Tech 

University. Id. at 331. The trip was cancelled, but the funding remained obligated, and the 

plaintiff later called Bill Herriman (an MCJROTC Purchasing Agent) to request that the funding 

be used instead for “leadership training” from September 10 to 13, 2009. Id. The funding was 

approved, and a later call from the plaintiff to Cammie Herriman (MCJROTC Budget Manager) 

requesting an increase in funding due to increased costs was also approved. Id.

The September 2009 trip involved the Amite High School cross-country team, which the 

plaintiff coached. Id. To use the MCJROTC funds, students who attended the trip had to be 

members of the MCJROTC. Compl. ¶ 16; AR at 331. Of the twelve cross country team students 

 1 Because the plaintiff did not submit a “separate concise statement of genuine issues setting forth all material facts 

as to which it is contended there exists a genuine issue necessary to be litigated,” the Court presumes that the 

plaintiff admits all material facts stated by the defendants, and thus there are no genuine issues of material fact that 

would preclude summary judgment. See LCvR 7(h)(1).
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who went on the trip, however, only seven were cadets of the MCJROTC. Compl. ¶ 17; AR at 

331. The plaintiff alleges that, with the approval of Principal Michael Stant and Lieutenant 

Colonel Bias (“Lt. Col. Bias”)—the Senior Marine Instructor at Amite High School and the 

plaintiff’s immediate Marine superior—he decided to name non-MCJROTC members of the 

cross country team as substitute participants for the trip because the cross-country team was 

targeted for recruitment. Compl. ¶ 16.

On September 11, 2009, the day after the plaintiff left for the trip, Lt. Col. Bias contacted 

Lieutenant Colonel Strohman (“Lt. Col. Strohman”)—the Regional Director of the MCJROTC 

region in which Amite High School is located and Lt. Col. Bias’s immediate Marine superior—

and informed him that “there might be some inconsistencies regarding PRD’s and a trip being 

sponsored by Amite High School to Destin, Florida.” AR at 331. The plaintiff has consistently 

contended that Lt. Col. Strohman “in fact was aware of the non-cadet participation.” Pl.’s Opp’n 

to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”) at 3, ECF No. 10; see also AR at 162 (plaintiff’s 

statement that “[Lt. Col. Bias] was briefed on all the new details of the coordination” for the 

September 2009 trip); id. at 414 (Principal Stant’s statement that “he had a problem believing 

[Lt. Col.] Bias was not aware of the Destin trip plans”). On September 17, 2009, W. E. 

McHenry (“Dr. McHenry”), Director of the MCJROTC program, appointed Lt. Col. Strohman to 

conduct a preliminary investigation into the “legitimacy of [the two] PRD’s as they relate to the 

direct support of the [MCJROTC] Program at Amite High School.” Id. at 329.

Lt. Col. Strohman filed a report of his preliminary investigation on September 22, 2009, 

which concluded that there was “zero leadership training or any MCJROTC training” conducted 

on the September 2009 trip, that not all of the students who went on the trip were MCJROTC 

cadets, and that the cost of the trip totaled $2,656.45. Id. at 330–32. On September 23, 2009, 
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Dr. McHenry notified the plaintiff that he was being considered for decertification as a result of

his “alleged misappropriations of government funds,” and that he “ha[d] [the] opportunity to 

submit both a statement and any materials [he] fe[lt] [were] germane and pertinent.” Id. at 327. 

On October 5, 2009, the plaintiff submitted a written statement regarding the incident. Id. at

325.

On November 16, 2009, Dr. McHenry forwarded Lt. Col. Strohman’s report, the 

plaintiff’s acknowledgment of decertification proceedings (including the plaintiff’s written 

statement), and Dr. McHenry’s September 23 notification letter to the Commanding General of 

Training and Education Command (“TECOM”), who is the Marine Corps officer responsible for 

final adjudication of decertification decisions. Id. at 323. Based upon Lt. Col. Strohman’s report 

and the plaintiff’s written statement, Dr. McHenry recommended that the plaintiff be 

immediately decertified, stating that the plaintiff “ha[d] brought discredit upon himself and the 

established MCJROTC Unit at Amite High School by . . . [attempting] to defraud the 

government by submitting . . . two [PRD’s] totaling $2656.45.” Id. at 323.

On January 6, 2010, Commanding General M. G. Spiese of TECOM declined to decertify 

the plaintiff. Id. at 321. General Spiese stated in his decision that “[t]his does not imply a lack 

of seriousness of this incident, nor condoning this in any way,” and he decided that the plaintiff 

“[would] be provided an opportunity to make the appropriate adjustments in his approach to his 

MCJROTC duties.” Id. General Spiese directed Lt. Col. Strohman to counsel the plaintiff, “in 

writing, regarding his attempted misuse of MCJROTC administered funds,” and to notify the 

plaintiff that “any future impropriety or misconduct can result in the loss of his instructor 

certification.” Id.
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Lt. Col. Strohman sent the plaintiff a “Counseling Statement” on January 28, 2010, which 

stated, inter alia, that the plaintiff was to “execute [his] duties as the Marine Instructor under the 

cognizance and supervision of [Lt. Col. Bias],” and that the plaintiff was no longer authorized to 

“make decisions concerning, or handle [MCJROTC] funds.” Id. at 319. Per Lt. Col. Strohman’s 

letter, from that point forward any PRDs for MCJROTC funds had to be “signed or initialed by 

[Lt. Col. Bias].” Id. The Counseling Statement concluded by stating that the plaintiff’s “future 

actions [would] be watch[ed] closely by [Lt. Col. Bias] and [Lt. Col. Strohman],” and that Lt. 

Col. Strohman would “not tolerate the slightest slip in performance or judgment in [the 

plaintiff’s] actions that reflect on [his] character or the performance of [his] assigned duties as a 

Marine Instructor.” Id. at 320. In accordance with this counseling, Lt. Col. Bias notified 

Principal Stant, the plaintiff, and the Purchasing Agent for Amite High School that “all 

expenditures from MCJROTC accounts . . . require the signature of [Lt. Col. Bias],” and that 

“[e]xpenditures not approved by [Lt. Col. Bias] shall not receive funding from MCJROTC 

accounts. It is, therefore, imperative that approval is sought prior to making purchases that 

require reimbursement from MCJROTC accounts.” Id. at 411.

B. Second Decertification Proceeding

On February 22, 2010, Principal Stant asked the plaintiff to organize a concession booth 

at the school’s basketball game on February 26, 2010, the proceeds from which were to go to the 

school’s weightlifting program, which is not associated with the MCJROTC. Id. at 356, 359–61. 

The plaintiff stated that he had previously “prepared a hand written purchase order dated 

[February 9, 2010] for [the] acquisition of . . . concession items” for an event on February 15, 

2010, the proceeds from which were to go to MCJROTC. Id. at 356. According to the plaintiff, 

because the February 15 event was intended to raise funds for the MCJROTC, the plaintiff had 
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written “JROTC” on the account line for the February 9 purchase order. See id. at 362 (purchase 

order form). The February 9 purchase order form was never processed and went unused because 

the plaintiff was unable to attend the February 15 event. Id. at 356. When Principal Stant 

subsequently asked the plaintiff to organize the basketball concession stand, the plaintiff says 

that he “decided to adjust the quantities and use the same [February 9] purchase order,” which 

still had the “JROTC” written in account line even though both the plaintiff and Principal Stant

understood that the funds were to be debited from the school’s general fund account. Id. at 356–

57, 362. The purchase order for $197.57 was signed by Principal Stant, and the funds were 

consequently debited from the MCJROTC account. See id. at 352, 357, 362, 367. The plaintiff 

contends, with the corroboration of Principal Stant, that the only reason that the MCJROTC 

account was debited was because of a new bookkeeper at the school who was unaware that the 

funds were for a school event, rather than an MCJROTC event. See id. at 415–16; Pl.’s Opp’n at 

4.

Upon reviewing the quarterly report for MCJROTC funds, Lt. Col. Bias noticed the 

withdrawal of funds and notified Lt. Col. Strohman. Id. at 340. Lt. Col. Strohman later reported 

that, when he spoke with the plaintiff regarding the withdrawal of funds in February, the plaintiff 

said that “he felt that because the Principal asked him to go get the concessions for the basketball 

game that he did not need approval from [Lt. Col. Bias] in order to access MCJROTC activity 

account funds.” Id. at 341. The misappropriated funds were later returned to the MCJROTC 

account by Principal Stant, see id. at 410, who wrote a letter on April 13, 2010, detailing how the 

withdrawal was a “paperwork error” that was “[d]ue to [a] change in bookkeepers.,” id. at 416. 

Lt. Col. Strohman reported that the misappropriation was not due to a clerical error, but rather 

was “an error on the part of [the plaintiff] to request the money out of the [MCJROTC] account 
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and a clear violation of the directives given to him by [Lt. Cols. Bias] and [Strohman].” Id. at

340.

In addition to the issues with the misappropriation of MCJROTC funds, Lt. Cols. Bias 

and Strohman contemporaneously noted issues with the plaintiff’s attitude and commitment to 

the MCJROTC program. In his May 27, 2010 evaluation of the plaintiff’s performance as an 

instructor, which rated the plaintiff overall as “below average,” Lt. Col. Bias stated that he did 

“not believe that [the plaintiff] keeps the MCJROTC program as his top priority.” Id. at 180–81. 

In the same evaluation, Lt. Col. Bias stated that the plaintiff had “taken the position of not doing 

anything he is not specifically instructed to undertake,” including his “failure to attend a 

mandatory meeting with parents of cadets.” Id. at 182. Lt. Col. Bias also noted the plaintiff’s 

“general distrust of [Lt. Cols. Bias] and [Strohman],” and the plaintiff’s “unprofessional 

behavior.” Id. Lt. Col. Strohman similarly reported in April 2010 that “[w]hen directed by [Lt. 

Col. Bias] to accomplish a task, [the plaintiff] would comment that it was not directed in the 

counseling letter.” Id. at 340–41.

On June 21, 2010, Lt. Col. Strohman initiated a second request to decertify the plaintiff. 

Id. at 337. On July 14, 2010, Dr. McHenry recommended that the plaintiff be decertified. Id. at

178, 334. The Staff Judge Advocate, another component within TECOM, however, 

recommended not to decertify, citing the fact that he was “not convinced this was anything more 

than a clerical error” after reviewing the statements of the plaintiff and Principal Stant. Id. at 

178. On July 27, 2010, the Commanding General decertified the plaintiff, stating: “I have 

carefully considered the information provided concerning your second misuse of funds. I have 

determined that your continued service as a Marine Instructor with the MCJROTC Program is 

not in the best interests of the U.S. Marine Corps.” Id. at 226.
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On July 28, 2010, the Marine Corps TECOM notified the Naval Service Training 

Command that they had decertified the plaintiff, and on August 9, 2010, the Naval Service 

Training Command notified the plaintiff that he was being considered for decertification as a 

NJROTC instructor by the Department of the Navy. Id. at 305. The NJROTC Instructor 

Certification Board Review Remarks Sheet, dated August 20, 2010, recommended 

decertification, citing the fact that the plaintiff “stopped doing his job including not attending 

mandatory meeting with parents of cadets,” and that the plaintiff elected to “NOT make [written] 

comments” after receiving a “Below Average” evaluation which “could have been beneficial to

his cause.” Id. at 311–12. Included in the NJROTC Certification Board’s recommendation was

the observation that “[t]his is a difficult call but since [the reviewer] do[es] not have all the 

Findings the MCJROTC program had when they decided to decertify, [the reviewer] must trust 

the system including the investigation and findings.” Id. at 312. As a “final thought,” the 

reviewer stated that “if the MCJROTC decertified him, how can our program not do the same? 

If we did not decertify and something happens, think of the mess we’d be in then!” Id. The 

plaintiff was notified on August 31, 2010 that the NJROTC Instructor Certification Board did not 

recommend his continued certification as a Naval Science Instructor in the NJROTC program. 

Id. at 309.

On July 21, 2011, the plaintiff sent a letter to Department of the Navy in an attempt to 

appeal the NJROTC Instructor Certification Board’s decision, raising three grounds to set aside 

the Board’s decision: (1) the Board had not identified what the grounds were for the 

decertification; (2) a private investigation had “revealed some questionable antics” by Lt. Col. 

Bias; and (3) a polygraph examination had concluded that the plaintiff was telling the truth about 

not intentionally taking JROTC funds or falsifying documents and believing that Lt. Col. Bias 
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was aware that non-JROTC students were participating in the September 2009 trip to Florida. 

Id. at 260–61. Rear Admiral David Steindl of the U.S. Navy replied on September 7, 2011 that 

he concurred with the Board’s decision. Id. at 315. 

Rear Admiral Steindl found the plaintiff’s arguments “unpersuasive.” Id. at 316. First, 

the Rear Admiral noted that the August 9, 2010 letter to the plaintiff stated that the Navy was 

considering revoking his certification as a “result of [the plaintiff’s] decertification as a 

[MCJROTC] instructor,” and that the relevant Navy regulation “authorizes us to consider 

revocation when we determine that ‘the conduct, performance, and evaluations of an instructor’ 

indicate that ‘continued certification is not in the best interests of the JROTC program.” Id.

Second, the Rear Admiral stated that Lt. Col. Bias’s conduct “is not relevant and has no bearing 

on our decision” because “the conduct at issue is that of [the plaintiff].” Id. Finally, the Rear 

Admiral stated that “intent to misuse funds or falsify documents is not and has never been the 

salient issue,” that “[w]hether [the plaintiff] took this action intentionally or negligently is not the 

point,” and that “[a]ny misuse, however motivated, of federal tax dollars is unacceptable, 

especially following a written directive to have no role in allocating federal funds.” Id.

On August 29, 2011, the plaintiff requested reconsideration of the MCJROTC 

decertification decision from the current Commanding General of TECOM, id. at 379, but the 

Commanding General of TECOM has yet to grant the plaintiff’s request. See Compl. ¶ 49; 

Def.’s SMF ¶ 9.

The plaintiff filed the Complaint in the instant action on November 2, 2012. Pending 

before the Court are the defendants’ Motion to Dismiss or, in the Alternative, for Summary 

Judgment, ECF No. 8, and the plaintiff’s Cross-Motion for Summary Judgment, ECF No. 10. 
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For the reasons discussed below, the Court denies the defendant’s motion and grants the 

plaintiff’s motion.

II. STANDARDS OF REVIEW

A. Summary Judgment

Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if 

the movant shows that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). Summary judgment is properly 

granted against a party who “after adequate time for discovery and upon motion . . . fails to make 

a showing sufficient to establish the existence of an element essential to that party’s case, and on 

which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 

322 (1986). The burden is on the moving party to demonstrate that there is an “absence of a 

genuine issue of material fact” in dispute. Id. at 323. 

In ruling on a motion for summary judgment, the Court must draw all justifiable 

inferences in favor of the nonmoving party and shall accept the nonmoving party's evidence as 

true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Estate of Parsons v. 

Palestinian Auth., 651 F.3d 118, 123 (D.C. Cir. 2011). The Court is only required to consider 

the materials explicitly cited by the parties, but may on its own accord consider “other materials 

in the record.” FED. R. CIV. P. 56(c)(3). For a factual dispute to be “genuine,” the nonmoving 

party must establish more than “[t]he mere existence of a scintilla of evidence” in support of its 

position, Liberty Lobby, 477 U.S. at 252, and cannot simply rely on “mere allegations” or 

conclusory statements, see Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006); Greene v. 

Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993); 

accord FED. R. CIV. P. 56(e). Rather, the nonmoving party must present specific facts that would 
11

enable a reasonable jury to find in its favor. See, e.g., FED. R. CIV. P. 56(c)(1). “If the evidence 

is merely colorable, or is not significantly probative, summary judgment may be granted.” 

Liberty Lobby, 477 U.S. at 249–50 (citations omitted).

B. Administrative Procedure Act

Under the APA, 5 U.S.C. § 706(2)(A), an agency action may be overturned if it is 

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Marsh v. 

Or. Natural Res. Council, 490 U.S. 360, 375 n. 21 (1989). Review of agency actions under the 

“arbitrary and capricious” standard is “highly deferential” and “presumes the agency’s action to 

be valid.” Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981). In assessing an 

agency decision, the Court reviews whether “the decision was based on a consideration of the 

relevant factors and whether there has been a clear error of judgment.” Citizens to Pres. Overton 

Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on other grounds, Califano v. Sanders, 

430 U.S. 99, 105 (1977). “The scope of the Court's review under this standard ‘is narrow and a 

court is not to substitute its judgment for that of the agency.’” United Steel v. Pension Benefit 

Guar. Corp., 839 F. Supp. 2d 232, 245 (D.D.C. 2012) (quoting Motor Vehicle Mfrs. Ass’n v. 

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 30 (1983)). “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) (citing Marsh, 490 U.S. at 

378).
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III. DISCUSSION

A. Committed to Agency Discretion

The defendants first argue that the decertification decisions of the Marine Corps and the 

Navy are non-justiciable2 because they are “committed to agency discretion.” See Def.’s Mem. 

at 12–15; Def.’s Reply in Supp. Mot. Dismiss or, in the Alternative, for Summ. J. and Opp’n to 

Cross Mot. Summ. J. (“Def.’s Reply”) at 3–6, ECF No. 13. The defendants contend that the 

standard by which the Navy and Marine Corps make decertification decisions, i.e., whether 

doing so is “in the best interests” of the military branch, does not provide a judicially 

manageable standard, which precludes APA review. Def.’s Mem. at 13–15; Def.’s Reply at 5–6.

There exists a “strong presumption that Congress intends judicial review of 

administrative action.” Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986). 

Therefore, “judicial review of a final agency action by an aggrieved person will not be cut off 

unless there is [a] persuasive reason to believe that such was the purpose of Congress.” Abbott 

Labs. v. Gardner, 387 U.S. 136, 140 (1967), abrogated on other grounds, Califano, 430 U.S. at

105. The APA provides that final agency actions are “subject to judicial review.” 5 U.S.C. 

§ 704. The only statutory exceptions to this rule are if a particular statute “preclude[s] judicial 

review” or if “agency action is committed to agency discretion by law.” Id. § 701(a). The 

former exception “is concerned with whether Congress expressed an intent to prohibit judicial 

review.” Webster v. Doe, 486 U.S. 592, 599 (1988). The latter exception applies “in those rare 

instances where ‘statutes are drawn in such broad terms that in a given case there is no law to 

apply.’” Citizens to Preserve Overton Park, 401 U.S. at 410; see also Heckler v. Chaney, 470 

U.S. 821, 830 (1985) (exception for action “committed to agency discretion” applies “if the 

 2 See Oryszak v. Sullivan, 576 F.3d 522, 526 (D.C. Cir. 2009) (“That a plaintiff complains about an action that is 

committed to agency discretion by law . . . does not mean, therefore, the court lacks subject matter jurisdiction.” 

(citing Baker v. Carr, 369 U.S. 186, 198 (1962))).
13

statute is drawn so that a court would have no meaningful standard against which to judge the 

agency’s exercise of discretion”).

The Supreme Court has held that, deciding whether the “committed to agency discretion” 

exception applies “requires careful examination of the statute on which the claim of agency 

illegality is based.” Webster, 486 U.S. at 600. In addition to the statutory language, “[j]udicially 

manageable standards may be found in formal and informal policy statements and regulations.” 

Padula v. Webster, 822 F.2d 97, 100 (D.C. Cir. 1987). In other words, the “no law to apply” 

standard is satisfied when there are “no legal norms pursuant to which to evaluate the challenged

action.” Drake v. FAA, 291 F.3d 59, 70 (D.C. Cir. 2002).

First, the Court observes that the defendants’ argument that the “best interests” standard, 

by itself, precludes judicial review, is incorrect. The “best interests” standard was not the 

standard legislated by Congress, but rather was the standard promulgated by the agencies 

themselves. “The key to any determination of reviewability is congressional intent,” Ramah 

Navajo Sch. Bd., Inc. v. Babbitt, 87 F.3d 1338, 1343 (D.C. Cir. 1996) (emphasis added), and thus 

the mere fact that an agency wishes to commit certain decisions to its own discretion carries only 

minimal weight, if any, in deciding whether a decision is “committed to agency discretion” under 

the APA.

Beginning with the statutory language, there are a number of potential standards against 

which to evaluate the discretion exercised in decertification decisions. Although the statute is 

silent regarding decertification, it contains a number of standards underlying certification. See

10 U.S.C. § 2033 (basing certification on “professional activities [and] services to the 

profession,” as well as “content knowledge and instructional skills,” and “performance 

evaluation of competencies and standards within the program”). These standards are instructive 
14

because, understanding what Congress intended certification of instructors to be based upon can 

assist a court in deciding whether an agency’s decision to revoke that certification was rational.

Furthermore, because the Court may look to “formal and informal policy statements and 

regulations” to find judicially manageable standards, the Court will also consider agency 

guidance from the Marine Corps and the Navy in determining whether judicially manageable 

standards exist. See Padula, 822 F.2d at 100. One thing that is clear from both the statute and 

the agency guidelines is that annual performance evaluations of JROTC instructors are a highly 

relevant consideration in the decertification decisionmaking process. See 10 U.S.C. § 2033 

(basing certification on “performance evaluation of competencies and standards within the 

program”); Marine Corps Order (“MCO”) 1533.6E, at 3-3 (2008) (requiring “thorough” annual 

performance evaluation and telling Regional Directors to “[r]ecommend for decertification 

instructors whose performance is unsatisfactory or where a preponderance of evidence indicates 

that the instructor’s conduct is prejudicial to the goals and objectives of the program”); CNET 

Instruction 1533.9K § 413 (2005) (“Certification will be revoked . . . [if] [u]pon consideration of 

the conduct, performance, and evaluations of an [instructor] by the school and/or designated

inspectors, CNET determines that continued certification of the instructor is not in the best 

interests of the program.”). 

Because the plaintiff was only certified as an NJROTC instructor for a little over four 

months in 2010, it appears that he never underwent an NJROTC performance evaluation. The 

plaintiff did, however, receive numerous performance evaluations over the course of his eleven 

years of service in the MCJROTC program. Those evaluations contain a rubric of fourteen 

facets of MCJROTC classroom instruction, ranging from “Instructor Planning and Preparation” 

to “Personal Appearance” to “Discipline.” See AR at 250. The evaluations also contain a space 
15

for the Senior Military Instructor to “[c]omment[] on the major strengths and weaknesses of the 

Instructor.” Id. Additionally, because the Marine Corps guidance enjoins Regional Directors to 

recommend for decertification any instructors whose “conduct is prejudicial to the goals and 

objectives of the program,” such goals and objectives—for example, helping students 

“[d]evelop[] an understanding of leadership skills and the advantages of strong moral character” 

and “[d]evelop[] in students a sense of pride and personal discipline and responsibility,” MCO 

1533.6E, at 1-1—are yet another source of judicially manageable standards by which to assess 

the exercise of agency discretion.

The defendants rely heavily on an unreported district court case from outside this Circuit, 

which held that JROTC decertification decisions are committed to agency discretion, see Glenn 

v. Rumsfeld, No. 05-1787, 2006 WL 515626 (N.D. Cal. Feb 28, 2006), but the Court finds the 

reasoning of Glenn unpersuasive. The court in Glenn did not consider the contents of MCO 

1533.6E or the fact that decertification decisions depend at least in part upon whether his 

“conduct is prejudicial to the goals and objectives of the program” and whether his “performance 

is unsatisfactory.” See id. at *5 (“Nor do the remaining provisions of the MCJROTC SOP 

provide this Court with any guidance as to what would or would not be ‘in the best interests of

the Marine Corps.’”). Furthermore, Glenn and other courts have placed too much weight upon 

the purported “military” or “operational” nature of decertification decisions. See id. at *3; see 

also Norris v. Lehman, 845 F.2d 283, 286 (11th Cir. 1988) (“[T]he decision to decertify 

[appellant] as an NJROTC instructor was essentially a military one.”). As this Circuit has 

recognized, unlike the statute at issue in Webster v. Doe, adjudicating the “status of a former

member of the armed services is [not] a decision so imbued with national security concerns as to 
16

require bypassing regular review procedures.” Dickson v. Sec’y of of Defense, 68 F.3d 1396, 

1403 (D.C. Cir. 1995).

This is not to say that the subjective nature of decertification decisions does not impart 

considerable discretion upon the Marine Corps and the Navy, but “deferential review is not the 

same as no review at all.” Dickson, 68 F.3d at 1406 n.17. Review of these decertification 

decisions “helps ensure that a second tier of ‘secret law’ absolving some but not others from the 

rigors of the statute does not impugn the equality of the principal law which does receive the 

benefit of judicial review.” Id. Thus, based upon the contents of 10 U.S.C. § 2033 and the 

formal and informal agency guidelines governing the certification and decertification of JROTC 

instructors, the Court concludes that judicially manageable standards exist for reviewing the 

agencies’ exercises of discretion in this case.

B. Arbitrary and Capricious Review

In passing upon adjudications like the decertification decisions at issue in the instant 

action, agencies are “required to ‘examine the relevant data and articulate a satisfactory 

explanation for its action including a rational connection between the facts found and the choice 

made.’” NetCoalition v. SEC, 615 F.3d 525, 532 (D.C. Cir. 2010) (internal quotation marks 

omitted) (quoting State Farm, 463 U.S. at 43). “A ‘fundamental’ requirement of administrative 

law is that an agency ‘set forth its reasons’ for decision; an agency’s failure to do so constitutes 

arbitrary and capricious agency action.” Tourus Records, Inc. v. DEA, 259 F.3d 731, 737 (D.C. 

Cir. 2001) (quoting Roelofs v. Sec’y of the Air Force, 628 F.2d 594, 599 (D.C. Cir. 1980)). “The 

agency’s statement must be one of ‘reasoning’; it must not be just a ‘conclusion’; it must 

‘articulate a satisfactory explanation’ for its action.” Butte Cnty. v. Hogen, 613 F.3d 190, 194 

(D.C. Cir. 2010) (quoting Tourus Records, 259 F.3d at 737). “This does not mean that an 
17

agency’s decision must be a model of analytic precision,” though “an agency’s explanation must 

minimally contain ‘a rational connection between the facts found and the choice made.’” 

Dickson, 68 F.3d at 1404 (quoting State Farm, 463 U.S. at 43). In conducting this review, a 

court is “attempting to identify whether ‘the decision making process was deficient, not whether 

[the] decision was correct.’” Id. at 1405 (alteration in original) (quoting Kreis v. Sec’y of Air 

Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989)).

In this case, neither the Marine Corps nor the Navy have met the minimal requirement of 

providing a “rational connection between the facts found and the choice made.” See State Farm, 

463 U.S. at 43. Beginning with the Marine Corps, General Spiese’s two-sentence explanation 

for his decision could be read to include only two things: (1) a factual finding that the plaintiff 

had engaged in a “second misuses of funds”; and (2) a conclusion that the plaintiff’s “continued 

service as a Marine Instructor with the MCJROTC Program is not in the best interests of the U.S. 

Marine Corps.” AR at 226. In issuing this decision, however, General Spiese “omitted the 

critical step—connecting the facts to the conclusion.” Dickson, 68 F.3d at 1405. This is 

especially problematic considering that the Marine Corps had previously chosen not to decertify 

the plaintiff based upon the same factual finding (i.e., a misuse of funds).3

 The General’s 

decision also does not reveal whether he considered the plaintiff’s performance evaluations or

the argument that the “misuse of funds” was a clerical error, much less what weight they

deserved. See id; AR at 226. It may be that the General had a perfectly appropriate reasoning 

for reaching the conclusion that he did, but “the boilerplate language used by [General Spiese] 

 3 The prior decision not to decertify the plaintiff stated that “any future impropriety can result in the loss of his 

instructor certification.” AR at 321 (emphasis added). General Spiese provided no rationale, however, that would 

explain why he chose not to decertify the first time but did choose to decertify the second time. This sort of 

departure from prior precedent, without explanation, is usually considered arbitrary and capricious. See, e.g., Trump 

Plaza Assocs. v. NLRB, 679 F.3d 822, 827 (D.C. Cir. 2012) (“‘Where an agency departs from established precedent 

without a reasoned explanation, its decision will be vacated as arbitrary and capricious.’” (quoting Pirlott v. NLRB, 

522 F.3d 423, 432 (D.C. Cir. 2008)).
18

makes it impossible to discern [his] ‘path.’” Dickson, 68 F.3d at 1405. Therefore, the Court 

concludes that the decertification decision of the Marine Corps in the plaintiff’s case must be 

vacated as arbitrary and capricious, and this matter must be remanded to the agency for renewed 

consideration of the plaintiff’s case.

The Navy’s decertification decision was also arbitrary and capricious, though for a 

slightly different reason. The Certification Board’s remarks indicate that it found that the 

plaintiff had “stopped doing his job, including not attending mandatory meeting with parents of 

cadets,” and that he had “elected to NOT make comments” on his most recent performance 

evaluation that “could have been beneficial to his cause.” AR at 312. The Board notably did not 

include any finding that the plaintiff had actually misused funds (as opposed to the withdrawal 

being a clerical error); rather, the Board merely noted that the plaintiff stood “accused of misuse 

of funds [a] second time.” Id. In a moment of remarkable candor, the Board admitted its 

indecision based on the record it had before it, stating “[t]his is a difficult call,” possibly because 

the Board did “not have all the Findings the MCJROTC program had when they decided to 

decertify.” Id. Nevertheless, the Board decertified the plaintiff on the rationale that “[s]ince [the 

Marine Corps] found cause to [decertify],” the Board was “hard pressed to recommend [Navy 

certification].” Id. at 313. The Board went so far as to make a note that “No USMC Cert  No 

USN Cert.” Id. 

In sum, the Navy’s rationale for decertifying the plaintiff was: If the Marine Corps 

decertified, “how can our program not do the same?” Id. at 312. Rather than give the plaintiff’s 

certification an independent assessment and consider whether his continued certification was “in 

the best interests of the Navy,” the Certification Board elected simply to “trust the system” by 

relying on the Marine Corps’s decertification decision. Yet, an agency does not act rationally 
19

when it blindly tethers its decisionmaking to that of another agency because such faith in another 

agency’s decisionmaking fails to account for the very real possibility that the other agency acted 

improperly or irrationally. Indeed, the other agency’s decisionmaking could very well be 

arbitrary and capricious, as the Marine Corps’s decisionmaking was in this case. Therefore, 

because the Navy’s decertification decision relied upon the decertification decision of the Marine 

Corps without making its own independent assessment of the plaintiff’s case, the Navy’s 

decision must also be vacated as arbitrary and capricious, and this matter must be remanded to 

the agency for renewed consideration of the plaintiff’s case.

4

IV. CONCLUSION

For the reasons set forth above, the defendant’s Motion to Dismiss or, in the Alternative, 

for Summary Judgment, ECF No. 8 is DENIED, and the plaintiff’s Cross-Motion for Summary 

Judgment, ECF No. 11 is GRANTED. The decisions by the defendants to decertify the plaintiff 

as an instructor in the MCJROTC and the NJROTC are vacated, and this matter is remanded to 

the Marine Corps and the Navy for reconsideration of the plaintiff’s continued certification as a 

JROTC instructor. An appropriate Order accompanies this Memorandum Opinion.

Date: September 29, 2012

 /s/ Beryl A. Howell

BERYL A. HOWELL

United States District Judge

 4 In light of the fact that the Court grants the plaintiff the injunctive relief that he seeks on statutory grounds, the

Court need not consider the plaintiff’s constitutional claim that he was denied due process.