Michael Crooks v. Raymond Mabus, Jr.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted October 14, 2016 Decided December 23, 2016

No. 15-5212

MICHAEL CROOKS,

APPELLANT

v.

RAYMOND EDWIN MABUS, JR., SECRETARY OF THE NAVY AND

DEE MEWBOURNE, REAR ADM, USN, NAVAL SERVICE

TRAINING COMMAND,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-01614)

John B. Wells was on the briefs for appellant.

R. Craig Lawrence and Jason T. Cohen, Assistant U.S.

Attorneys, were on the brief for appellees. Fred E. Haynes,

Assistant U.S. Attorney, entered an appearance.

Before: TATEL, Circuit Judge, and EDWARDS and

GINSBURG, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

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EDWARDS, Senior Circuit Judge: The Navy maintains a

Junior Reserve Officers’ Training Corps (“NJROTC”) at

public and private secondary schools that apply to establish a

unit and meet the applicable statutory standards. 10 U.S.C. §

2031(a)(1). To support the program, the Secretary of the Navy

may detail certain “retired officers and noncommissioned

officers,” in addition to other qualified individuals, to serve as

NJROTC instructors. 10 U.S.C. § 2031(c)–(d). Certification

as an “instructor in leadership, wellness and fitness, civics,

and other courses related to the content of the program,” 10

U.S.C. § 2033(a), is a prerequisite for retired officers or

noncommissioned officers to serve as NJROTC instructors.

The Navy retains the authority to revoke an instructor’s

certification if it determines that the person’s “continued

certification . . . is not in the best interests of the program.”

Commander, Navy Education and Training Command

Instruction (“CNETINST”) 1533.9K, Art. 404(e)(5). In

making such a determination, the Navy considers the

instructor’s “conduct, performance, and evaluations.” Id.

Appellant Michael Crooks retired as a Major in the United

States Marine Corps on June 30, 1994. Shortly before his

retirement, the Navy certified him as a NJROTC instructor.

From 1995 to 2008, Appellant was employed as a Senior

Naval Science Instructor (“SNSI”) at Pearl River High

School’s NJROTC program in Pearl River, Louisiana. On

November 16, 2007, following receipt of unfavorable reviews

from the Principal of Pearl River High School and a NJROTC

Area Manager, the NJROTC Program Manager revoked

Appellant’s certification. Decertification Letter, Joint

Appendix (“JA”) 50. On October 22, 2013, after two

NJROTC Instruction Certification Boards upheld his

decertification, Appellant filed suit in District Court to contest

his removal from the NJROTC program. On May 20, 2015,

after reviewing the parties’ cross-motions for summary

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judgment, the District Court granted judgment to the Navy.

Appellant now appeals.

In challenging the District Court’s judgment, Appellant

advances three principal arguments. First, he contends that the

regulation on which the Navy relied to revoke his certification

is unconstitutionally vague. He also asserts that the Navy

denied him due process because it failed to accord him

adequate notice and opportunity to be heard when

determining whether he should be permitted to continue to

serve as a NJROTC instructor. Finally, he claims that the

Navy’s decertification decision was arbitrary and capricious

and unsupported by substantial evidence. For the reasons

explained below, we find no merit in these claims. We

therefore affirm the judgment of the District Court.

I. BACKGROUND

Until 2006, Appellant apparently received positive

reviews and evaluations of his performance as a NJROTC

instructor at Pearl River High School. However, beginning in

2006, a number of parties, including students, the Principal of

Pearl River High School, and the NJROTC Area Manager

who was tasked with reviewing Appellant’s work raised

concerns about his performance and conduct. The criticisms

levied against Appellant included claims that he slept during

class, left NJROTC student cadets unattended, failed to

adhere to the NJROTC curriculum, and did not meet the

NJROTC’s mandatory bodyweight requirement. 2007

NJROTC Instructor Evaluation, JA 51. At some point during

the decertification process, the Principal of Pearl River High

School provided the Navy with a letter alleging that Appellant

had “falsely report[ed] to the U.S. Navy the number of

students enrolled at the school which was indicating to the

Navy he met the ten percent quota [necessary] to keep the unit

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from going on probation.” JA 191; see JA 189–92. Cadets and

their parents also submitted letters and emails suggesting that

the substance of Appellant’s classes was not in line with the

NJROTC’s curriculum. They also complained about

Appellant’s “alienat[ing] . . . class behavior,” which included

“slamming a rod down on tables . . . grabbing cadets by the

waist . . . prodding cadets with the same rod used to slam on

tables, [and] calling cadets names such as ‘stupid’ and

‘moron.’” JA 102; see JA 99–107.

On November 16, 2007, after receiving unsatisfactory

evaluations from both the Principal and the NJROTC Area

Manager, and after affording Appellant an opportunity to

provide a written rebuttal of the charges leveled against him,

the Navy advised Appellant that his certification in the

NJROTC was “being revoked due to unsatisfactory marks on

[his] Instructor Evaluation and Observation Report.”

Decertification Letter, JA 50. The parties agree that the

decertification action was taken pursuant to CNETINST

1533.9K, Article 404(e)(5), which states that:

“[Instructor c]ertification will be revoked . . . [if] upon

consideration of the conduct, performance, and evaluations of

an [instructor] by the school and/or designated inspectors, [the

Chief of Naval Education & Training] determines that

continued certification of the instructor is not in the best

interests of the program.” See Br. for Appellant at 15; Br. for

Appellee at 46.

Following the initial decertification decision, Appellant’s

counsel sent a letter to the Navy demanding a “full hearing.”

JA 96. The Navy interpreted this as a “request for

reconsideration” by a NJROTC Instructor Certification Board

(“Certification Board”). JA 97. Prior to reconsideration by the

Certification Board, Appellant was permitted to submit

additional information, including the results of an

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investigation conducted by his counsel’s private investigator,

the results of a polygraph test taken by Appellant, and letters

from parents and former students who supported him. See JA

108–17, 131–36, 138–43, 157–59. The NJROTC Area

Manager also provided the Certification Board with additional

materials, including letters and emails from cadets and their

parents regarding Appellant’s conduct. See JA 98–107.

On April 23, 2008, the Certification Board affirmed the

revocation of Appellant’s instructor certification. JA 183–84.

In justifying the action, the Certification Board members

emphasized Appellant’s deviation from the NJROTC

curriculum, classroom absences, sleeping in class, and

“incidents of alleged physical contact” with cadets. JA 176,

179. Appellant appealed the Board’s decision and a second

NJROTC Certification Board was constituted. On September

14, 2008, the second Board found that Appellant’s NJROTC

instructor certification should not be reinstated. JA 219.

On October 22, 2013, Appellant filed a complaint in the

District Court seeking vacatur of the Navy’s decision and the

restoration of his certification. JA 25. The parties filed cross-

motions for summary judgment and, on May 20, 2015, the

District Court issued a memorandum opinion and order

granting the Navy’s motion for summary judgment and

denying Appellant’s motion for summary judgment.

II. ANALYSIS

A. Standard of Review

We review the District Court’s grant of summary

judgment de novo. See Menkes v. U.S. Dep’t of Homeland

Sec., 637 F.3d 319, 329 (D.C. Cir. 2011). “In a case like the

instant one, in which the District Court reviewed an agency

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action under the [Administrative Procedure Act (“APA”)], we

review the administrative action directly, according no

particular deference to the judgment of the District Court. On

an independent review of the record, we will uphold the

agency action unless we find it to be ‘arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.’

5 U.S.C. § 706(2)(A).” Holland v. Nat’l Mining Ass’n, 309

F.3d 808, 814 (D.C. Cir. 2002); see EDWARDS, ELLIOTT, &

LEVY, FEDERAL STANDARDS OF REVIEW 115–16 (2d ed.

2013).

B. The Navy Regulation in Article 404(e)(5) of CNETINST

1553.9K is Not Void for Vagueness

Appellant was decertified pursuant to CNETINST

1533.9K, Article 404(e)(5), which provides that an

individual’s certification may be revoked if,

upon consideration of the conduct,

performance, and evaluations of an SNSI/NSI

by the school and/or designated inspectors,

[the Chief of Naval Education & Training]

determines that continued certification of the

instructor is not in the best interests of the

program.

Appellant claims that this regulation violates the void-for-

vagueness doctrine because “a person of ordinary intelligence

[cannot] readily identify the applicable standard for inclusion

and exclusion.” Br. for Appellant at 16 (quoting United Food

& Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l

Transit Auth., 163 F.3d 341, 358–59 (6th Cir. 1998)). We

disagree.

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“Outside of the First Amendment context, a plaintiff must

show that the law in question ‘is impermissibly vague in all of

its applications’” to succeed on a facial challenge. Decatur

Liquors, Inc. v. District of Columbia, 478 F.3d 360, 364 (D.C.

Cir. 2007) (quoting Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)). But cf.

Johnson v. United States, 135 S. Ct. 2551, 2556–62 (2015)

(finding penal statutory provision was void for vagueness

although it would be permissible as applied to some conduct

because the statute required applying an uncertain term to “an

idealized ordinary case of the crime,” id. at 2651, and “not to

real-world facts or statutory elements,” id. at 2557).

Appellant’s claim falls far short of the “impermissibly vague

in all of its applications” standard.

There are, as the Supreme Court has noted, “limitations in

the English language with respect to being both specific and

manageably brief.” U.S. Civil Serv. Comm’n v. Nat’l Ass’n of

Letter Carriers, AFL-CIO, 413 U.S. 548, 578–79 (1973). This

tension was borne out in Arnett v. Kennedy, in which the

Court concluded that a statute permitting termination of

federal employees “as will promote the efficiency of the

service” was not impermissibly vague on its face. 416 U.S.

134, 159 (1974). Justice Rehnquist’s plurality opinion, whose

reasoning was joined by a majority of the Court on this issue,

rejected the notion that “a detailed code of employee

conduct,” rather than a more general standard was required

when Congress was attempting to provide “myriad different

federal employees performing widely disparate tasks a

common standard of job protection.” Id.; see id. at 164

(Powell, J. concurring); id. at 177 (White, J., concurring in

part and dissenting in part). Crucial to the Court’s decision in

Arnett was the fact that Congress had not “written upon a

clean slate” when it promulgated the contested standard. Id. at

160. Rather, as the Court noted, “[t]he Civil Service

8

Commission ha[d] indicated that what might be said to be

longstanding principles of employer-employee relationships,

like those developed in the private sector, should be followed

in interpreting [the contested standard].” Id. In other words,

the agency’s standard comported with the “rough idea of

fairness” which animates the vagueness doctrine, providing a

framework for individuals attempting to understand the

statute’s provision for removal of employees in instances that

would “promote the efficiency of the service.” Id. at 159–60

(citation omitted).

In this case, the “best interests of the program” standard in

CNETINST 1533.9K, Article 404(e)(5) is given context by

reference to the factors that the Navy considers when

determining whether an individual’s conduct warrants

decertification. The regulation provides that the Navy will

look to an instructor’s “conduct, performance, and the

evaluations of an SNSI/NSI by the school and/or designated

inspectors” in deciding whether decertification is appropriate.

These evaluations include a variety of metrics, such as:

“[a]dvance classroom preparation; [i]nstructor/cadet rapport;

[and p]ersonal conduct.” NJROTC Instructor Observation

Report, JA 52. This guidance, paired with the heavy burden

Appellant faces in demonstrating that the regulation is

impermissibly vague in “all of its applications,” Village of

Hoffman Estates, 455 U.S. at 495, renders his facial challenge

to CNETINST 1533.9K, Article 404(e)(5) unavailing.

Appellant also cannot credibly assert that the Navy’s

regulation is impermissibly vague as applied to his case. Br.

for Appellant at 16. The behavior that resulted in his

decertification – being verbally abusive toward cadets,

sleeping in class, and failing to adhere to the NJROTC’s

curriculum – was of a nature that he surely should have

known that it was “not in the best interests of the program.”

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See United States v. Thomas, 864 F.2d 188, 198 (D.C. Cir.

1988) (rejecting as-applied vagueness challenge where

appellants had notice because the regulation in question

plainly encompassed their behavior); see also San Filippo v.

Bongiovanni, 961 F.2d 1125, 1136–37 (3d Cir. 1992) (noting

that regulation providing that a teacher could be dismissed for

failure to maintain “standards of sound scholarship and

competent teaching” was not vague as applied to a professor

who had been accused of verbal abuse and intimidation of

students as “[a] reasonable, ordinary person using his

common sense and general knowledge of employer-employee

relationships would have fair notice” that he could be

dismissed under this standard, id. 1137); Fowler v. Bd. of

Educ. of Lincoln Cty., Ky., 819 F.2d 657, 664–66 (6th Cir.

1987) (statute proscribing “conduct unbecoming a teacher”

was not unconstitutionally vague as applied to a teacher who

permitted a “controversial, highly suggestive and somewhat

sexually explicit movie to [be shown to] a group of high

school students,” id. at 665).

In sum, on the record before us, we can find no merit in

Appellant’s void-for-vagueness challenge to CNETINST

1533.9K, Article 404(e)(5). We therefore conclude that the

regulation is not unconstitutionally vague.

C. The Navy Did Not Violate Appellant’s Procedural Due

Process Rights

Appellant contends that the Navy’s failure to identify the

students who submitted letters that were critical of his

performance as a NJROTC instructor or to provide him with

the opportunity to interview individuals whose evaluations

and opinions were considered during the course of the Navy’s

decertification proceedings violated his procedural due

process rights. Br. for Appellant at 14.

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In assessing this claim, we first note that, before the

District Court, Appellant did not argue that the Navy’s

decision to redact students’ names from letters submitted in

the course of his decertification was improper. See Crooks v.

Mabus, 104 F. Supp. 3d 86, 102 (D.D.C. 2015). Therefore,

this claim has been forfeited. See District of Columbia v. Air

Florida, Inc., 750 F.2d 1077, 1078–79 (D.C. Cir. 1984).

Before addressing Appellant’s remaining due process

claim, we will first determine whether the Navy’s

decertification decision deprived him of a property or liberty

interest. On the record before us, it is clear that Appellant has

not demonstrated a property interest sufficient to trigger the

protections of the Fifth Amendment’s Due Process Clause.

We are also doubtful that he has shown a constitutionally

protected liberty interest, but we need not reach this issue.

We reject Appellant’s claim that the Navy’s decertification

proceedings violated his procedural due process rights

because, as the District Court concluded, even “[a]ssuming,

arguendo” that Appellant had protected liberty or property

interests, “he was afforded all the process he was due.”

Crooks, 104 F. Supp. 3d at 102.

1. Appellant’s Alleged Property Interest

The Supreme Court has noted that property interests “may

take many forms.” Bd. of Regents v. Roth, 408 U.S. 564, 576

(1972). However,

[t]o have a property interest in a benefit, a

person clearly must have more than an

abstract need or desire for it. He must have

more than a unilateral expectation of it. He

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must, instead, have a legitimate claim of

entitlement to it.

Id. at 577.

Generally, a “claim of entitlement” is not viable when a

government agency wields significant or unfettered discretion

in determining whether to award or rescind a particular

benefit or when an individual lacks an objective basis for

believing that he is entitled to retain a benefit. See, e.g., Wash.

Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 35–36

(D.C. Cir. 1997); Hall v. Ford, 856 F.2d 255, 265–67 (D.C.

Cir. 1988). Indeed, we have held that an individual has no

“cognizable property interest” in the renewal of a license or

certification where the applicable agency “regulations

explicitly permit the agency to not renew an examiner for any

reason deemed appropriate by the Administrator.” Fried, 78

F.3d at 692; see also Lopez v. FAA, 318 F.3d 242, 249 (D.C.

Cir. 2003) (finding that failure to renew a particular

designation did not implicate a protected property interest

where agency regulations stated that such designation was “a

privilege granted by the Administrator” and that it was “not

the right of every qualified applicant to be granted” such a

designation).

The regulation at issue in this case, CNETINST 1533.9K,

is similar to the regulations at issue in Fried and Lopez. As

noted above, 1533.9K, Article 404(e)(5), permits the Navy to

revoke a NJROTC instructor’s certification if, “upon

consideration of [his or her] conduct, performance, and

evaluations . . . continued certification . . . is not in the best

interests of the program.” Given this language, it is plain that

the Navy has retained expansive authority and discretion to

determine whether an individual should be allowed to remain

in the NJROTC program as an instructor. The language

12

certainly does not suffice to establish that an instructor’s

position creates a protected property interest.

Appellant attempts to bypass the difficulty posed by the

regulation by claiming that the property interest implicated in

this case is his employment at Pearl High School, not his

certification as a NJROTC instructor. See Reply Br. for

Appellant at 10–11. He points to now-defunct language from

a Louisiana statute which provided that individuals would

“automatically become . . . regular and permanent teacher[s]

in the employ of the school board” after serving three years as

a probationary teacher. Id. He thus argues that the state statute

provides him with a protected property interest because he

was an employee of Pearl River and taught there for more

than three years. Id. It is noteworthy that, in 2012, the

Louisiana legislature amended this statute to remove the

language upon which Appellant relies. H.B. 974, 2012 Leg.,

Reg. Sess. (La. 2012). Even if this language were still good

law, however, Appellant could not rely on a Louisiana statute

to diminish the Navy’s considerable discretion in determining

whether to revoke his NJROTC certification. The state law

does not control Navy determinations regarding who will

serve as NJROTC instructors. And without certification,

Appellant cannot serve as a NJROTC instructor at Pearl River

High School or at any other school.

In sum, on the record in this case, we hold that Appellant

has not demonstrated a property interest that was infringed by

the Navy’s revocation of his certification.

2. Appellant’s Alleged Liberty Interest

It is unclear whether Appellant has presented sufficient

evidence to demonstrate that the Navy’s decision infringed a

constitutionally protected liberty interest. Appellant argues

13

that, “as a proud Marine, [he] had a liberty interest in his

service reputation.” Reply Br. for Appellant at 12. He

amplifies this point a bit by arguing that “[t]his court has

recognized that the stigma to reputation in employment gives

rise to a liberty interest.” Id. (citing Doe v. U.S. Dep’t of

Justice, 753 F.2d 1092, 1104–05 (D.C. Cir. 1985)). According

to Appellant, the nature of the charges against him, which

included dishonesty, due to his alleged falsification of

enrollment figures, “castigat[ion] at a [public] school board

hearing,” and the publication of the charges against him in the

local newspaper, were sufficiently stigmatizing so as to

foreclose future employment opportunities. Id. at 12–13. This,

he claims, was enough “to trigger a liberty interest in [his]

reputation.” Id. at 13.

Appellant seems to suggest, inter alia, that his liberty

interest was infringed because, during the Navy’s

decertification proceedings, he was accused of dishonesty in

falsifying enrollment figures. Indeed, two Reconsideration

Board members specifically noted the allegations of

dishonesty leveled against Appellant in affirming his

decertification. See JA 185, 217. He thus apparently contends

that this supports his due process claim. See O’Donnell v.

Barry, 148 F.3d 1126, 1140 (D.C. Cir. 1998) (noting that

“defamation alone is not actionable under the due process

clause, but that defamation ‘in the course of the termination of

employment’ is” (quoting Paul v. Davis, 424 U.S. 693, 710

(1976))); see also Doe v. U.S. Dep’t of Justice, 753 F.2d at

1104–05. He is mistaken. In order to proceed on this claim,

Appellant must demonstrate that the Navy publicized the

charges against him. As we noted in Doe, in a “stigma-plus”

case – i.e., a case involving a claim of defamation – “the

government must be the source of the defamatory

allegations.” 753 F.2d at 1108 (citing Mosrie v. Barry, 718

F.2d 1151, 1161 (D.C. Cir. 1983)). However, there is nothing

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in the record of this case to indicate that the Navy publicized

the revocation of Appellant’s certification or the reasons for

its decision. Whatever adverse publicity resulted from the

decertification appears to have emanated from either the

actions of the school board or reports in a local newspaper

that were not attributed to the Navy. Thus, it cannot be said

that the Navy infringed Appellant’s liberty interest by

publicizing the details of his case. See Fried, 78 F.3d at 692

(noting that the government did not make public the

claimant’s non-renewal, nor did it publicize any reasons for

that non-renewal); see also O’Donnell, 148 F.3d at 1140;

Orange v. District of Columbia, 59 F.3d 1267, 1274–75 (D.C.

Cir. 1995).

Apart from his defamation claim, Appellant contends that

he suffered a stigma to his reputation that gave rise to a liberty

interest. Broadly speaking, we have recognized two theories

pursuant to which an individual who alleges “government

interference with his future employment prospects may

demonstrate the tangible change in status required to prove

constitutional injury.” Taylor v. Resolution Trust Corp., 56

F.3d 1497, 1506 (D.C. Cir. 1995). First, “if [the

government’s] action formally or automatically excludes [the

plaintiff] from work on some category of future [government]

contracts or from other government employment

opportunities, that action . . . implicates a liberty interest.” Id.

(quoting Kartseva v. Dep’t of State, 37 F.3d 1524, 1528 (D.C.

Cir. 1994)) (alterations in original). Second, if the

government’s action “precludes [the plaintiff] – whether

formally or informally – from such a broad range of

opportunities that it interferes with [his] constitutionally

protected right to follow a chosen trade or profession,” the

action implicates a liberty interest. Id. (citing Kartseva, 37

F.3d at 1529) (internal quotation marks omitted).

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To the extent that Appellant’s liberty interest claim rests

on the second theory – i.e., the Navy’s decision interferes

with his constitutionally protected right to follow a chosen

profession – he is on weak ground. His argument claims too

much. Discharge from a particular job is not the same as

exclusion from one’s chosen profession. See Abdelfattah v.

U.S. Dep’t of Homeland Sec., 787 F.3d 524, 539 (D.C. Cir.

2015) (noting that “the loss of ‘one position in [the]

profession’ is insufficient to implicate a Fifth Amendment

liberty interest in following one’s chosen trade or profession.

Rather an individual must suffer a binding disqualification

from work or broad preclusion from his or her chosen field.”

(citing Kartseva, 37 F.3d at 1528–29) (citations omitted)). In

Fried, for example, this court held that an individual’s liberty

interest was not implicated where an agency refused to renew

his designated pilot examiner license because he could still

“sell flight instruction services to willing private buyers.” 78

F.3d at 692. Here too, Appellant, while unable to continue in

his role as a NJROTC instructor, was able to find employment

as a teacher at a new institution. Reply Br. for Appellant at

13.

To the extent that Appellant’s claim rests on the first

theory – i.e., the Navy’s decision effectively excluded him

from work on some category of future government contracts

or from other government employment opportunities – it is

harder to assess. The case law is somewhat difficult to square

with respect to claims of “stigma to reputation,” which is the

focus of Appellant’s claim in this case.

In Taylor, the court explained that:

Constitutional injury supposes something more than

simple defamation or stigma. Paul v. Davis, 424

U.S. 693 (1976). Even a plaintiff who receives an

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admittedly defamatory recommendation from a

prior government employer that “would

undoubtedly . . . impair his future employment

prospects” cannot establish a constitutional

violation “so long as such damage flows from injury

caused by the defendant to a plaintiff's reputation”

alone. Siegert v. Gilley, 500 U.S. 226, 234 (1991).

To prove constitutional injury, the plaintiff must

show not only that the government has imposed

some stigma upon him, but also that it has worked

some change in his status under law. See Paul v.

Davis, 424 U.S. at 711–12.

Taylor, 56 F.3d at 1506. In other words, Appellant may not

“sue purely on the basis of the stigma associated with being

fired.” O’Donnell, 148 F.3d at 1139. “[S]tigma alone is not

actionable, without a showing that a ‘right or status previously

recognized by state law’ has been ‘distinctly altered or

extinguished.’” Id. (quoting Paul v. Davis, 424 U.S. 693, 711

(1976)). As this case demonstrates, however, determining

whether a claimant has suffered a “change in status” sufficient

to support a claim of constitutional injury is not always easy.

One way to read the record here is to say that the Navy’s

decertification decision had a very limited effect – it merely

foreclosed Appellant from serving as a NJROTC instructor,

nothing more. Appellant was not barred from other

government employment opportunities. Indeed, he has not

even claimed that he has been unsuccessful in seeking other

employment positions with the federal government. At worst,

Appellant suffered damage to his reputation, which, without

more, is not enough to support his liberty interest claim. In

other words, it is hard to see how the Navy’s action not only

“imposed some stigma upon him, but also . . . worked some

change in his status under law.” Taylor, 56 F.3d at 1506.

17

On the other hand, another way to view Appellant’s

situation is to say that he has been excluded from all future

employment or contracting opportunities with the NJROTC

program. In Old Dominion Dairy Products v. Secretary of

Defense, 631 F.2d 953, 963–64 (D.C. Cir. 1980), we held that

a contractor had a viable liberty interest due process claim

after a government agency found the contractor guilty of

misconduct and prevented the contractor from securing

further contracts with the same agency. In this case, Appellant

seems to view his decertification from the NJROTC program

as comparable.

We acknowledge that Appellant’s claim that the Navy’s

decision infringed a constitutionally protected liberty interest

is not implausible. Nevertheless, we remain dubitante on this

point. We need not struggle further with this issue, however,

because we agree with the District Court that, even

“[a]ssuming, arguendo” that Appellant had protected liberty

or property interests, “he was afforded all the process he was

due.” Crooks, 104 F. Supp. 3d at 102.

3. Appellant was Afforded All of the Process That He

Was Due

In support of his claim that he was denied constitutionally

adequate process, Appellant advances several arguments.

Taking into account the commands of Mathews v. Eldridge,

424 U.S. 319 (1976), and its progeny, we find no merit in any

of Appellant’s contentions.

First, Appellant claims that the Navy redacted the names

from letters written by some of his students. As noted above,

this argument was never raised in the District Court so it is

plainly forfeited.

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Appellant also claims, without any record citation, that the

Navy “stymie[d]” his investigation by preventing him from

interviewing students, school staff, and naval personnel. Br.

for Appellant at 14–15. The record, however, supports the

Navy’s position that it did not stand in his way. A report from

Appellant’s own private investigator shows that he tried to

contact some of his students but was unsuccessful for a

variety of reasons, none having to do with the Navy. JA 157.

Appellant also concedes in his Reply Brief that the Navy

played no role in his inability to interview school personnel.

Reply Br. for Appellant at 15.

Finally, in his reply brief, Appellant does submit an email

chain that might corroborate his claim that the Navy

prevented him from interviewing Commander Ladner, who

conducted one of his unfavorable performance reviews. Reply

Br., Exh. A. Not only does this come too late, Appellant never

moved to supplement the record with those emails either in

this court or before the District Court. Even if he had,

Appellant eventually deposed Ladner in 2011, yet he neglects

to offer any information that he gleaned from that deposition

that he believes would have altered the Boards’ decisions. See

Horning v. SEC, 570 F.3d 337, 347 (D.C. Cir. 2009) (“In the

absence of any suggestion of prejudice, we cannot conclude

that [Appellant] was deprived . . . of procedural due process

. . . .”).

In addressing Appellant’s due process claim, the District

Court stated:

[Appellant] submitted a detailed rebuttal to the

allegations against him prior to his decertification,

and, with the assistance of counsel, to each of the

Boards reviewing the decision. As the defendants

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point out, the “[Appellant] received all the

administrative review procedures that are available,

except for an in-person hearing, and [Appellant]

does not argue that he was entitled to such a

hearing.” Defs.’ Opp’n at 15. The D.C. Circuit has

held that “[d]ue process requires ‘notice reasonably

calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and

afford them an opportunity to present their

objections.’” Reeve Aleutian Airways, Inc. v. United

States, 982 F.2d 594, 599 (D.C. Cir. 1993). Thus,

even assuming, without deciding, that the

[Appellant] had a liberty or property interest in his

NJROTC certification, the [Appellant’s] receipt of

the evidence against him and his three separate

opportunities, of which he availed himself, to

submit rebuttal evidence, constitute sufficient due

process such that the plaintiff’s right to due process

under the Fifth Amendment was not abridged.

Crooks, 104 F. Supp. 3d at 103 (citations and footnotes

omitted). We agree. “Under the utilitarian balance prescribed

by the Supreme Court in Mathews v. Eldridge, [Appellant]

has received at least the quantum of process [he] was due

before being” decertified by the Navy from the NJROTC

program. Reeve Aleutian Airways, 982 F.2d at 602.

D. The Navy’s Decertification Decision Was Neither

“Arbitrary and Capricious” Nor Unsupported by

“Substantial Evidence”

Appellant claims that the Navy’s decertification decision

was both arbitrary and capricious and lacking in substantial

evidence. However, there is no material difference between

the APA’s “arbitrary and capricious” standard and its

20

“substantial evidence” standard as applied to court review of

agency factfinding. See Safe Extensions, Inc. v. FAA, 509

F.3d 593, 604 (D.C. Cir. 2007) (“[An] informal adjudication[]

. . . must be supported by substantial evidence – otherwise it

would be arbitrary and capricious.”) (quotation marks

omitted); see also Ass’n of Data Processing Serv. Orgs. v. Bd.

of Governors of Fed. Reserve Sys., 745 F.2d 677, 683–84

(D.C. Cir. 1984); EDWARDS, ELLIOTT, & LEVY, FEDERAL

STANDARDS OF REVIEW, supra, at 203, 220–21. We will

therefore evaluate Appellant’s arbitrary-and-capricious and

substantial evidence claims in tandem in reviewing the

Navy’s decertification decision.

In determining whether the Navy’s actions were arbitrary

and capricious, this court does not “substitute its judgment for

that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Rather, we

examine an agency’s decision to ensure that it “was

reasonable and reasonably explained.” Jackson v. Mabus, 808

F.3d 933, 936 (D.C. Cir. 2015). Similarly, we may find that

an agency decision is “supported by substantial evidence even

though a plausible alternative interpretation of the evidence

would support a contrary view.” Morall v. DEA, 412 F.3d

165, 176 (D.C. Cir. 2005) (quoting Robinson v. Nat’l Transp.

Safety Bd., 28 F.3d 210, 215 (D.C. Cir. 1994)).

Appellant’s objections to the Navy’s decision to revoke

his certification largely center around two interrelated

arguments. First, he claims that the Navy failed to take

seriously his contention that information submitted by the

Principal of Pearl River High School that accused Appellant

of failing to adequately perform his duties was due to “bad

blood” between the two. Br. for Appellant at 23. Second,

Appellant claims that the Navy abused its discretion in failing

to consider evidence submitted by him at various points

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throughout the decertification process, including: a polygraph

test taken by Appellant; the results of an investigation

conducted by his counsel’s private investigator; his

explanation that he fell asleep in class due to a recently

prescribed medication; a positive evaluation of his work in his

new teaching position; and a finding by the Louisiana

Department of Labor that he had not been discharged from his

position for misconduct connected with his employment. Br.

for Appellant at 23–26. These arguments do not hold water.

The Navy was not required to credit Appellant’s claim

that the Principal’s assessment of his performance was

attributable to a disagreement between the two men, nor did it

need to “explain away every point raised” or piece of

evidence contained in Appellant’s submissions. Crooks, 104

F. Supp. 3d at 100 (citing Fla. Gas Transmission Co. v.

FERC, 604 F.3d 636, 645 (D.C. Cir. 2010)). At every

proceeding in which the Navy considered whether to revoke

Appellant’s certification, it informed Appellant that the

officials responsible for reviewing his case had considered the

entire record before them, including the evidence submitted

by Appellant that he now claims was overlooked or

improperly weighed. See JA 122, 183, 219. The fact that the

Navy did not draw the inferences that Appellant might wish

when examining this evidence does not render its decision

arbitrary and capricious or unsupported by substantial

evidence.

Under well-established law, the Navy was only required

to review relevant information and articulate a satisfactory

explanation establishing “a rational connection between the

facts found and the choice made.” Am. Trucking Ass’ns v.

Fed. Motor Carrier Safety Admin., 724 F.3d 243, 249 (D.C.

Cir. 2013) (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at

43)). As the District Court’s opinion carefully lays out, “the

22

evidence [that Appellant] presented to the Boards was

available for their consideration, but the Boards articulated,

based on other solid evidence” – including the facts that the

Appellant had deviated from the NJROTC curriculum,

interacted inappropriately with cadets, and was found to be

either sleeping during, or absent from, class – “a rational

explanation for a decision against the [Appellant].” Crooks,

104 F. Supp. 3d at 102. We agree. Therefore, we have no

grounds to second-guess the judgment reached by the Navy.

III. CONCLUSION

For the reasons set forth above, we affirm the judgment of

the District Court.