UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________ ) DEREK IACCARINO, ) ) Plaintiff ) ) v. ) Civil Action No. 17-0857(EGS) ) ELAINE DUKE, Acting Secretary, ) U.S. Department of Homeland ) Security, et al., ) ) Defendants. ) _________________________________)

MEMORANDUM OPINION

Plaintiff Derek Iaccarino, a former Federal Protective

Service employee, brings this action against Elaine Duke, Acting

Secretary of the Department of Homeland Security (“DHS”), and

two employees of the Federal Law Enforcement Training Center

(“FLETC”) under the Administrative Procedure Act,

, et seq. Mr. Iaccarino challenges FLETC’s finding that he

engaged in misconduct and its decision to expel him after Mr.

Iaccarino was arrested by FLETC security guards for failure to

produce his identification. He seeks, inter alia, vacatur of

that decision and remand to DHS for a new final agency decision

consistent with a less severe punishment. Compl., ECF No. 1 ¶¶

62–63. The parties have filed cross-motions for summary judgment

and this matter is ripe for decision. See Defs.’ Mot. Summ. J.

(“Defs.’ Mot.”), ECF No. 18; Pl.’s Cross-Mot. ECF No. 19. The

1 Court finds that although DHS adequately explained its finding

of Mr. Iaccarino’s misconduct, it failed to explain why

expulsion was the appropriate sanction for that misconduct. The

Court therefore GRANTS IN PART and DENIES IN PART both Mr.

Iaccarino’s and the defendants’ Cross-Motions for Summary

Judgment. Further, the Court REMANDS the matter to DHS for

further proceedings consistent with this Memorandum Opinion.

I. Background

This dispute arises out of an altercation that occurred

while Mr. Iaccarino was a trainee at FLETC’s Physical Security

Training Program (“training program”). Compl., ECF No. 1 ¶ 13.

At that time, Mr. Iaccarino was employed as a Law Enforcement

Specialist within the Federal Protective Service of the National

Protection and Programs Directorate, Department of Homeland

Security (“DHS”) and enrolled in the training program at FLETC

as part of his employment.

. The training program

ran from July 2016 through January 31, 2017.

. Mr.

Iaccarino was scheduled to graduate from the training program on

January 31, 2017, but, ten days earlier, he was involved in an

incident with other students and several security guards.

¶¶

15–16, 47–48. On graduation day, Mr. Iaccarino was informed he

was permanently expelled from FLETC; effectively ending his

career in federal law enforcement.

¶ 48

2 A. The Incident

In the early morning hours of January 21, 2017, Mr.

Iaccarino, and three other trainees, Heather Chaney, Carlos

Castillo, and Joshua Wood, were on the balcony of one of FLETC’s

buildings drinking, smoking cigarettes, and listening to music

playing from a nearby room. Administrative Record (“AR”) at 57. 1

The group caught the attention of Officer Michael Jordan who was

on patrol nearby. AR at 57–58. Officer Jordan approached the

group and informed them that they would need to return to their

rooms before someone filed a noise complaint. AR at 58. The four

refused.

One of the males in the group (it is unclear who),

stated, “we have been here for seven months and we will do what

we want.”

Officer Jordan again asked the group to return to

their rooms; and, again, they refused.

Officer Jordan left

and advised the group that if he had to come back via a

complaint he would need to take their names and report the

incident to their class coordinator.

Approximately 30 minutes later, Officer Jordan received a

noise complaint and was dispatched back to the building. AR at

59. Upon arriving, Officer Jordan saw Officers Shelton Fuller

and Mark Ruis approaching the same group he spoke to earlier.

1 The certified administrative record in this matter was submitted on May 31, 2018 and is docketed at ECF No. 25. When citing the AR throughout this opinion, the Court cites to the ECF header page number. 3

Officer Jordan overheard Mr. Iaccarino say “this is a waste

of my time for the same old mother-f*ing sh*t.”

The Officers

repeatedly requested the trainees to produce their

identifications; and all four students continued to refuse. AR

at 62. Mr. Wood “began getting loud” with Officer Fuller while

refusing to hand over his identification, to the point where the

other trainees began telling him to calm down.

After several

attempts by the Officers to get the identifications for the

report, the Officers called the shift supervisor, Lieutenant

James Wiley. AR at 63.

The saga continued when Lt. Wiley arrived. Lt. Wiley

repeatedly asked for the trainees’ identifications, and the

trainees refused and continued to drink. AR at 60. Mr. Wood

stated he “did not have to give up his f*ing ID card” and then

walked away saying “this is bullsh*t.” AR at 67. Ms. Chaney

responded by using her phone to film Lt. Wiley; and by stating

he did not have the authority to request her identification.

Iaccarino was “very argumentative” and told the other trainees

the officers had no authority and “could not do sh*t;” continued

to use profanity and began recording Lt. Wiley on his phone.

Mr. Castillo stated he would not comply because he did nothing

wrong. AR at 68. At a stalemate, Lt. Wiley contacted Christopher

Meidt, the Security and Emergency Management Specialist (SEM),

for assistance.

4 During the wait for SEM Meidt, Mr. Castillo had an

unpleasant conversation with Officer Ruis. AR at 63–64. Mr.

Castillo approached Officer Ruis and stated, “Hey, ‘mustache’ .

. . you’re thinking your life sucks right now. . . . ‘Mustache,’

you’re gonna welcome me back to FLETC every day at the gate,

you’re gonna say . . . ‘welcome to FLETC, Sir’ I’m gonna get you

fired for this, I hate you. I hate you, I’ve got more experience

than you. I know I do!” AR at 63. Mr. Castillo followed up this

monologue with an “aggressive look by furrowing his eyebrows

intensely.” AR at 64. Officer Ruis maintained his composure and

the situation did not escalate.

Ms. Chaney then “finally

said okay,” and provided her identification to Officer Fuller

and left. AR at 71. SEM Meidt arrived shortly thereafter. AR at

64.

By all accounts, Mr. Iaccarino and SEM Meidt did not get

along. See, e.g., AR at 49. Mr. Iaccarino “confronted SEM Meidt

immediately” and wanted to know why he needed to produce his

identification. AR at 50. After SEM Meidt explained who he was

and asked for the trainees’ identifications, Mr. Iaccarino

“blatantly refused,” AR at 68, was “very belligerent,” AR at 49,

and began filming SEM Meidt, AR at 68. Mr. Iaccarino stopped

filming when instructed to do so by the Officers, but continued

to argue about producing his identification. AR at 64, 68. SEM

Meidt instructed Mr. Iaccarino that he would be detained if he

5 did not produce his identification. AR at 50. Mr. Iaccarino did

not comply and was put in handcuffs.

Once in handcuffs, Mr.

Iaccarino dropped his identification card to his feet. AR at 60.

Messrs. Castillo and Wood provided their identifications soon

after. AR at 50. All three were transported to another FLETC

building, Building 93, for further investigation. AR at 64–65.

The group arrived at Building 93; Ms. Chaney joined them

shortly of her own volition. AR at 71. Mr. Castillo continued to

verbalize his distaste for Officer Ruis and his goal to get him

fired. AR at 65. Mr. Iaccarino was compliant with all orders

from that point on. AR at 64. The local police were contacted,

and two trainees submitted to breathalyzer tests: Mr. Wood’s

results showed a blood-alcohol content of .061 and Mr.

Iaccarino’s results showed a blood-alcohol content of .108. AR

at 60–61. Ms. Chaney and Mr. Castillo refused the test.

The

trainees were separated and ultimately provided witness

statements. AR at 68. After providing the statements, they were

free to leave, but told that there would be an investigation

into the incident. AR at 50.

B. The Investigation/Inquiry Procedure

Because many of the issues in this case relate to the

procedures required whenever FLETC conducts an investigation or

inquiry into alleged misconduct, a brief summary of those

6 procedures is provided before addressing the investigation

conducted into the circumstances of the January 21 incident.

FLETC’s Student Misconduct Manual (“misconduct manual”)

“establishes procedures for inquiries and investigations of

student . . . misconduct as well as procedures for imposing

discipline on students who commit . . . misconduct while in

training status.” AR at 83. The misconduct manual defines two

types of investigatory procedures into misconduct. The first is

an “inquiry,” defined as an “administrative fact-finding

procedure. . . . used to determine the facts when a student is

alleged to have committed an infraction[] and/or misconduct but

is not suspected of committing criminal activity or organized

misconduct.” AR at 85. The second, an “investigation,” is also a

“fact-finding procedure” but is “used whenever a student is

suspected of having committed a criminal act or misconduct.”

An investigation, as opposed to an inquiry, begins when

“[a]lleged incidents of criminal acts or serious misconduct . .

. [are] referred to the [Office of Professional Responsibility

(“OPR”)].” AR at 90. If OPR chooses not to investigate the

allegations, it returns the investigation to the Training

Management Division (“TMD”), Division Chief of the training

program for further inquiry.

The standard of evidence to

show misconduct occurred is proof by preponderance of the

evidence. AR at 96.

7 The misconduct manual sets the minimum requirements for the

manner in which an inquiry or investigation is conducted. AR at

91–95. “When conducting an inquiry or an investigation, at

minimum, the [investigative officer] shall” notify the student

and “allow the student an opportunity to address the allegations

and to submit relevant rebuttal material.” AR at 91. The

investigative officer is required to “summarize the subject

student interview in a [memorandum of investigation],” which the

investigative officer is required to provide to the “witness for

review and signature.”

The TMD Chief is required to review

the investigative file and “prepare an action memorandum to the

appropriate Discipline Approval Authority” 2 (“DAA”) recommending

a particular punishment.

When reviewing the investigative file, the DAA, “at a

minimum, . . . shall utilize” certain factors “to determine

what, if any, discipline is appropriate.” AR at 94. The factors

include:

(a) The seriousness of the alleged misconduct;

(b) The likelihood of the recurrence of the alleged misconduct;

(c) The likelihood that the presence of the student will have a disruptive or undesirable effect on the class and/or upon the training environment if the student remains in training;

2 The misconduct manual states the Discipline Approval Authority is the “Site Director at the Field Training Directorate . . . and the Deputy Assistant Director (“DAD”).” AR at 84. 8 (d) The likelihood that the student will [or] will not repeat the alleged misconduct;

(e) The student’s record prior to the alleged misconduct;

(f) The student’s response to the allegations of misconduct;

(g) Whether the student made any admission of responsibility, regret, and/or remorse;

(h) The type of discipline recommended by the [investigative officer] and the TMD Chief;

(i) Any other relevant information.

AR at 94. Upon consideration of these factors, the DAA has the

option of approving, modifying, or denying the action

recommended by the TMD Chief.

If the DAA chooses to remove

or expel a student, then the student has a right to appeal. AR

at 95.

The misconduct manual outlines the procedure for such an

appeal. AR at 95–96. The Enterprise Program Manager (“EPM”)

reviews expulsion appeals. 3 AR at 95. The student has the option

of presenting an appeal either orally, by writing, or both.

The EPM is required to review the disciplinary file and any new

materials including information provided by the student in

writing or during the oral appeal.

3 According to the misconduct manual, the EPM is the Assistant Director of the Centralized Training Management Directorate. AR at 84. 9 The misconduct manual lays out a two-step process for the

EPM’s ultimate resolution of the appeal. AR at 96. After review

of the information submitted, the EPM “shall first determine,

based on any new evidence whether the infraction(s) and/or

misconduct occurred.”

“The standard of review during an

appeal remains proof by preponderance of the evidence.”

If

it is determined that the alleged misconduct occurred, the EPM

next “shall determine whether the discipline imposed was

appropriate.”

If the EPM decides to “uphold [the] removal or

expulsion, the EPM shall set forth the reasons why this

punishment was appropriate.”

The EPM must also “issue a

letter to the student containing all findings and decisions.”

The EPM’s decision on appeal constitutes a final agency

action.

C. The Inquiry

Pursuant to the procedures set forth in the misconduct

manual, on January 24, 2017, Senior Advisor Steve Bialousz

contacted OPR and requested that it open an investigation into

the events of the morning of January 21. AR at 26. OPR informed

Senior Advisor Bialousz that the matter was “primarily

administrative in nature” and that OPR “would not open an

official investigation.”

OPR referred the case back to

FLETC, and Senior Advisor Bialousz assigned the case to Program

10 Specialist (“PS”) Edward King to conduct an inquiry into the

incident.

That same day, PS King recommended that the training

program expel Mr. Iaccarino.

PS King found that Mr.

Iaccarino engaged in misconduct “specifically by blatantly

refusing to follow lawful instructions, disrespecting FLETC

security officers, . . . using inappropriate and offensive

language when addressed by security, demonstrating a lack of

respect and professionalism for fellow law enforcement officers,

[and] demonstrating threatening behaviors.”

PS King also

found that Mr. Iaccarino “. . . repeatedly call[ed] an officer a

derogatory name, . . . and threaten[ed] to have the officer

fired.”

PS King presented this recommendation to the TMD Chief, who

in turn presented the same findings to the Deputy Assistant

Director. AR at 17, 24. Mr. Iaccarino received notice of his

expulsion on January 31, 2017. AR at 21–23. He would later find

out that Mr. Castillo was also expelled, but that Mr. Wood and

Ms. Chaney were not. 4 Mr. Iaccarino timely appealed his expulsion

to the EPM. AR at 15–16.

4 Mr. Castillo original joined Mr. Iaccarino in this lawsuit challenging his expulsion, but subsequently dropped his appearance. Compl., ECF No. 1 ¶ 53. Ms. Chaney was initially expelled, but she successfully appealed, and her expulsion was reversed.

. Mr. Wood was not expelled.

. 11 After considering Mr. Iaccarino’s oral and written

statements, the EPM affirmed Mr. Iaccarino’s expulsion. AR at 1.

The EPM found that, based on all the information provided, “the

alleged misconduct occurred[,] and the discipline imposed—

expulsion--was appropriate.”

The entirety of the EPM’s

explanation is as follows:

I am satisfied that the allegations of your misconduct have been substantiated by a preponderance of evidence. The facts I found persuasive in reaching this determination are: your failure to comply with repeated FLETC Security personnel demands to produce your identification. You finally produced your identification after FLETC Security placed you in handcuffs. In your oral response, you disputed that you displayed aggressive behavior towards FLETC [S]ecurity personnel and looked to resolve the situation earlier and did not refuse to produce your identification when asked. I do not find these arguments you raised to be persuasive or compelling.

The EPM next advised Mr. Iaccarino of his right to judicial

review under the Administrative Procedure Act (“APA”).

Mr. Iaccarino sought judicial review of his expulsion under

the APA,

, et seq., by filing this complaint on

May 9, 2017. Compl., ECF. No. 1 ¶ 1. He seeks vacatur of the

expulsion and a remand back to DHS to issue a new final agency

decision.

. The defendants moved for summary judgment

and Mr. Iaccarino filed an opposition and cross-motion for

12 summary judgment. Defs.’ Mot., ECF No. 18; Pl.’s Cross-Mot. ECF

No. 19. The motions are now ripe for decision.

II. Legal Standard

Summary judgment should be granted only if the moving party

has shown that there are no genuine issues of material fact and

that the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett,

(1986); Waterhouse v. Dist. of Columbia,

(D.C. Cir. 2002). In determining whether a genuine issue of

material fact exists, the Court must view all facts in the light

most favorable to the non-moving party. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp.,

(1986). The

non-moving party’s opposition, however, must consist of more

than mere unsupported allegations or denials and must be

supported by affidavits or other competent evidence setting

forth specific facts showing that there is a genuine issue for

trial. Fed. R. Civ. P. 56(c); see Celotex Corp.,

.

When reviewing agency action pursuant to the APA, the Court

must determine whether the challenged decision is, inter alia,

“arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law,”

(2)(A); “in excess of

statutory jurisdiction, authority, or limitations, or short of

statutory right,”

§ 706(2)(C); or “without observance of

13 procedure required by law,” id. § 706(2)(D). The arbitrary or

capricious provision, under subsection 706(2)(A), “is a

catchall, picking up administrative misconduct not covered by

the other more specific paragraphs” of the APA. Ass'n of Data

Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed. Reserve

Sys. (ADPSO),

, 683 (D.C. Cir. 1984). The “scope of

review under the ‘arbitrary and capricious’ standard is narrow

and a court is not to substitute its judgment for that of the

agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto. Ins. Co.,

(1983).

Although this scope of review is deferential, “courts

retain a role, and an important one, in ensuring that agencies

have engaged in reasoned decision making.” Judulang v. Holder,

(2011). In evaluating agency actions under the

arbitrary and capricious standard, the court must be satisfied

that the agency has “examine[d] the relevant data and

articulate[d] a satisfactory explanation for its action

including a rational connection between the facts found and the

choice made.” Alpharma, Inc. v. Leavitt,

(D.C.

Cir. 2006) (internal citation and quotation marks omitted).

Moreover, when an agency “has failed to provide a reasoned

explanation, or where the record belies the agency’s conclusion,

[the court] must undo its action.” Cnty. of Los Angeles v.

Shalala,

, 1021 (D.C. Cir. 1999)(citation and

14 internal quotation marks omitted). In other words, “the agency

must explain why it decided to act as it did.” Butte Cnty. v.

Hogen,

(D.C. Cir. 2010).

III. Discussion

As the parties both note, in reviewing the agency’s

decision the Court is not free “to substitute its judgment for

that of the agency.” See State Farm,

(1983).

Deference must be given to the agency, even when reasonable

minds could differ about the correct conclusion. See Calloway v.

Harvey,

(D.D.C. 2008). Under this

deferential review, the question for this Court is whether the

evidence in the record is sufficient to support the defendants’

decision and establish “a rational connection between the facts

found and the choice made.” Am. Trucking Ass’ns, Inc. v. Fed.

Motor Carrier Safety Admin.,

(D.C. Cir. 2013).

Mr. Iaccarino makes three principal arguments as to why

DHS’s decision to expel him from the training program cannot

stand: (1) DHS’s decision to give him a harsher punishment than

other trainees who acted in the same manner was arbitrary and

capricious, Pl.s’ Cross-Mot., ECF No. 19-1 at 16–17; (2) DHS’s

conclusion that he engaged in misconduct was not supported by

the record,

at 14–16; and (3) DHS failed to provide a

reasoned explanation for why expulsion was the appropriate

15 punishment in his case.

at 17–19. This Court addresses each

issue in turn.

A. Disparate treatment

Mr. Iaccarino argues that his behavior was “nearly

identical” to that of Mr. Wood and that, because Mr. Wood only

received probation, the agency acted in an arbitrary and

capricious manner when it failed to explain why it imposed a

different punishment for the same behavior. Pl.’s Cross-Mot.,

ECF No. 19-1 at 16–17. The defendants argue that Mr. Iaccarino

received a different punishment because his actions were

different, and therefore the agency’s decision was not arbitrary

and capricious. Defs.’ Reply, ECF No. 21 at 7–8.

The Court of Appeals for the District of Columbia Circuit’s

(D.C. Circuit) “long line of precedent has established that an

agency action is arbitrary when the agency offer[s] insufficient

reasons for treating similar situations differently.” Kort v.

Burwell,

(D.D.C. 2016) (quoting Cnty. of

Los Angeles v. Shalala,

, 1022 (D.C. Cir. 1999));

see also Kreis v. Sec’y of the Air Force,

(D.C. Cir. 2005) (“It is axiomatic that ‘[a]n agency must treat

similar cases in a similar manner unless it can provide a

legitimate reason for failing to do so.’”) (citation omitted).

In determining whether an agency’s action is arbitrary and

capricious in treating like cases differently, the court first

16 determines whether the agency treated “similarly situated”

parties in a different manner. See Anna Jaques Hosp. v.

Sebelius,

, 6–7 (D.C. Cir. 2009) (declining to review

whether the Department of Health and Human Services allegedly

acted arbitrarily by applying different standards for similar

hospitals when appellee failed to show the hospitals were indeed

similarly situated). If the parties are similarly situated, then

the court next determines whether the agency adequately

explained why it failed to treat the cases in a similar manner.

Kort,

(holding agency’s action was

arbitrary and capricious when it failed to explain why it denied

Medicare coverage for a certain diagnostic scan while approving

coverage for another, similarly situated, diagnostic test).

The administrative record shows that Mr. Iaccarino and Mr.

Wood were not similarly situated because their actions were

materially different. 5 There are some similarities between Mr.

Iaccarino’s and Mr. Wood’s actions in that each initially

refused to show their identification, AR at 60, and, at times,

used inappropriate language with officers. AR at 67. However,

5 Mr. Iaccarino also argues that his behavior was identical to Ms. Chaney, whose expulsion was lowered to disciplinary probation. Pl.s’ Cross-Mot., ECF No. 19-1 at 16. Ms. Chaney was the first trainee to surrender her identification, and she went back to her room before SEM Meidt arrived. AR 71. She was never placed under arrest and voluntarily reported to Building 93 for further investigation.

The record clearly shows that Mr. Iaccarino and Ms. Chaney were not similarly situated. 17 the similarities end there. The record shows that Mr. Wood

provided his identification to the Officers without being

handcuffed, whereas Mr. Iaccarino was arrested before providing

his identification. AR at 50. The record also shows that,

although Mr. Wood was at times uncooperative, he was described

as “respectful.” AR at 58. In contrast, Mr. Iaccarino is

described as the “most heavily intoxicated” and the “most

vocal,” AR at 50, and in multiple reports described as

“belligerent,” AR at 18, 49. Because the record shows that there

were material differences between Mr. Wood’s and Mr. Iaccarino’s

actions, and therefore they were not “similarly situated,” DHS

did not act arbitrary and capriciously by imposing different

punishments. 6 See Anna Jaques Hosp., 583 F.3d at 6–7.

B. DHS’s decision that Mr. Iaccarino engaged in misconduct

Mr. Iaccarino next argues that the evidence in the record

did not support DHS’s conclusion that he engaged in misconduct.

Pl.s’ Cross-Mot., ECF No. 19-1 at 14–16. He contends that the

administrative record does not contain factual support for many

6 Mr. Iaccarino references another trainee who at some point was disciplined for drinking at a FLETC event, but was not expelled. Pl.s’ Cross-Mot., ECF No. 19-1 at 17. According to Mr. Iaccarino, the other trainee was “drinking at a FLETC event” and “creating a security incident that took . . . security officers one hour to resolve.”

(citing AR at 11). Those are simply inadequate facts to determine that the circumstances of Mr. Iaccarino and this unnamed trainee were sufficiently alike such that the agency erred in not explaining why it treated Mr. Iaccarino’s case differently. 18 of the findings upon which his expulsion was based.

Specifically, Mr. Iaccarino takes issue with the findings in PS

King’s report as not supported by the record.

at 14–15.

Since the findings have no basis in the record, Mr. Iaccarino

argues, the final agency decision upholding his appeal which

relied on those findings could not have been supported by

substantial evidence.

Defendants contend that the decision was supported by

sufficient evidence. First, defendants argue that it is

undisputed that FLETC had the authority to expel Mr. Iaccarino.

Defs.’ Mot., ECF No. 18-1 at 13. Next, the defendants argue that

the record in this case is “replete with evidence supporting

Iaccarino’s expulsion.”

at 14–15. The defendants point to

various statements made by the Officers who responded to the

noise violation describing Mr. Iaccarino’s behavior as

uncooperative, and reports which show that Mr. Iaccarino

violated the noise and identification policies.

With respect

to its explanation for the expulsion, defendants point to PS

King’s report to the TMD Chief as sufficient. Id. at 16.

Defendants argue that the report “provided a detailed

description of the findings of fact made during FLETC’s

investigation . . . [and] that this misconduct violated four

separate FLETC student misconduct provisions.” Id. (citing AR at

24).

19 When review of an agency’s action is “bound up with a

record-based factual conclusion,” the reviewing court must

determine whether that conclusion “is supported by substantial

evidence.” Dickinson v. Zurko,

, 164 (1999); see

also Kaufman v. Perez,

(D.C. Cir. 2014)

(noting that agency factual findings may be “set aside . . .

only if unsupported by substantial evidence on the record as a

whole”) (citation and internal quotation marks omitted). “An

agency’s refusal to consider evidence bearing on the issue

before it constitutes arbitrary agency action within the meaning

of § 706.” Butte Cnty. Cal. v. Hogen,

(D.C.

Cir. 2010). As the D.C. Circuit has explained, an agency

decision “would be arbitrary and capricious” if it is not

“supported by substantial evidence” because “it is impossible to

conceive of a ‘nonarbitrary’ factual judgment supported only by

evidence that is not substantial in the APA sense.” ADPSO, 745

F.2d at 684. “Consequently, when assessing whether agency action

is arbitrary or capricious, in their application to the

requirement of factual support[,] the substantial evidence test

and the arbitrary or capricious test are one and the same.” Id.

at 683.

It is undisputed that PS King’s report provided the

findings for the agency’s determination of misconduct. See

Defs.’ Mot., ECF. No. 18-1 at 16; Pl.s’ Cross-Mot., ECF No. 19-1

20 at 14. Mr. Iaccarino’s arguments that the record does not

support the agency’s findings that he assumed an aggressive

posture, was placed in handcuffs because of his aggressive

actions, and that he demonstrated threatening behaviors, are

easily dismissed. There is sufficient evidence in the record to

support these findings: for example, Officer Fuller explicitly

stated “Mr. Derek Iaccarino became very belligerent towards Mr.

Meidt,” AR at 49; and Officer Ruis stated “Derek Iaccarino

become so argumentative with Mr. Meidt, at that point, that Mr.

Meidt instructed me . . . to place [Mr. Iaccarino] in

handcuffs,” AR at 64.

That said, the administrative record does not support the

other two findings in the report--that Mr. Iaccarino called an

officer a derogatory name and threatened to have that officer

fired. See AR at 26. It is clear from the record that another

student referred to Officer Ruis by a derogatory name,

“Mustache.” AR at 63 (“Hey, Mustache . . . you’re thinking your

life sucks right now? . . . Mustache, you’re gonna welcome me

back to FLETC every day at the gate.”). And that this same

student repeatedly threatened to get Officer Ruis fired. See,

e.g., id. (“I’m gonna get you fired for this, I hate you.”). In

Mr. Iaccarino’s expulsion letter he was informed that he

violated FLETC standards of conduct in part by repeatedly

calling officers derogatory names, AR at 21, however, the

21 administrative record contains no facts to support such a

finding. 7

Mr. Iaccarino did not contest these deficiencies in the

report; nor in his expulsion letter in his appeal to DHS.

Furthermore, there is no indication that the EPM relied on these

erroneous findings in determining that Mr. Iaccarino engaged in

misconduct. In Mr. Iaccarino’s appeal, he brought to the EPM’s

attention several discrepancies in the Officers’ statements and

“several examples of the lack of quality of evidence.” AR at 8–

12. The EPM stated the “matters . . . raised in [Mr.

Iaccarino’s] written appeal and oral response” were “carefully

considered.” AR at 1. Critically, the EPM did not rely on the

findings related to the derogatory name-calling or threats of

firing an officer in its decision finding that the misconduct

occurred. Id. Rather, the EPM relied on two facts in determining

there was misconduct: (1) Mr. Iaccarino “fail[ed] to comply with

repeated FLETC Security personnel demands to produce . . .

identification,” and (2) Mr. Iaccarino finally produced his

identification “after FLETC Security placed [him] in handcuffs.”

Id. The EPM also stated that it did not find persuasive Mr.

7 It is troubling that in several places in the Inquiry Report Mr. Castillo is referred to as the subject of the misconduct inquiry--not Mr. Iaccarino. See, e.g., AR at 24 (“This inquiry was conducted to determine if Mr. Castillo’s actions were in violation of the above mentioned FLETC Directive.”) (emphasis added). 22 Iaccarino’s arguments that he was not aggressive towards

officers and that he produced his identification when asked. Id.

It is these findings that the EPM “found persuasive in

reaching” its determination that “the allegations of [Mr.

Iaccarino’s] misconduct [were] substantiated by a preponderance

of evidence.” Id. Because the findings that Mr. Iaccarino

refused to comply with the security officers’ requests for his

identification and did not produce his identification until he

was handcuffed were supported by sufficient evidence in the

record, the Court finds that DHS’s decision that the alleged

misconduct occurred was supported by substantial evidence.

C. DHS’s explanation for Mr. Iaccarino’s expulsion

Mr. Iaccarino next argues that DHS’s decision to expel him,

rather than suspend or terminate him, was arbitrary and

capricious for two reasons. First, Mr. Iaccarino argues that DHS

relied on facts that did not exist to support its conclusions.

Pl.’s Cross-Mot., ECF No. 19-1 at 17–18. Second, Mr. Iaccarino

contends that DHS acted in an arbitrary and capricious manner

when it failed to consider or explain important relevant

factors. Id. at 18–19. The defendants argue that Mr. Iaccarino

violated a host of FLETC rules and point to the statements of

witnesses as support for his expulsion. Defs.’ Reply, ECF No. 21

at 4–6. Defendants disagree that DHS failed to consider the

23 relevant factors because the factors were considered during Mr.

Iaccarino’s appeal. Id. at 9–11.

“The requirement that agency action not be arbitrary and

capricious includes a requirement that the agency adequately

explain its result.” Public Citizen, Inc. v. F.A.A.,

(D.C. Cir. 1993) (citing Federal Election Comm’n v.

Rose,

(D.C. Cir. 1986)). It is a fundamental

tenet of administrative law that “an agency set forth its

reasons for decision; and an agency’s failure to do so

constitutes arbitrary and capricious agency action.” Amerijet

Int’l., Inc. v. Pistole,

(D.C. Cir. 2014).

This fundamental principle “is indispensable to sound judicial

review.”

The arbitrary and capricious standard of the APA

“mandat[es] that an agency take whatever steps it needs to

provide an explanation that will enable the court to evaluate

the agency’s rationale at the time of decision.” Pension Benefit

Guaranty Corp. v. LTV Corp.,

(1990). Put

simply, an agency “must explain why it chose to do what it did .

. . and conclusory statements will not do.” Amerijet, 754 F.3d

at 1350.

This does not mean that an agency’s ultimate conclusion

needs to be impeccably reasoned to survive a challenge under the

APA. A reviewing court will “uphold a decision of less than

ideal clarity if the agency’s path may reasonably be discerned.”

24 Int’l Ladies’ Garment Workers’ Union v. Donovan,

(D.C. Cir. 1983) (citing Bowman Transp., Inc. v. Arkansas–

Best Motor Freight System,

(1974)). However,

an agency’s explanation must, at a minimum, contain “a rational

connection between the facts found and the choice made.” State

Farm,

(citing Burlington Truck Lines, Inc. v.

United States,

(1962)). “When an agency

provides a statement of reasons insufficient to permit a court

to discern its rationale, or states no reasons at all, the usual

remedy is a remand to the agency for additional investigation or

explanation.” Tourous Records, Inc. v. Drug Enforcement Admin.,

(D.C. Cir. 2001) (citation and internal

quotation marks omitted).

Mr. Iaccarino’s first argument is that DHS relied on facts

non-existent in the record. However, as explained above, the EPM

explicitly relied on facts that were supported by the record in

explaining its finding that misconduct occurred. See Supra at

22–23. The record also belies Mr. Iaccarino’s second argument

that DHS never consider several mitigating factors. The record

contains Mr. Iaccarino’s written submissions for his appeal,

which analyzes each of the factors he contends were not

considered. AR at 10. The letter notifying Mr. Iaccarino of the

result of his appeal references his written submissions, and the

submissions were considered in connection to his appeal. AR at

25 1. The EPM reviewed these factors as part of “the matters [Mr.

Iaccarino] raised in his written appeal” which the EPM

“carefully considered.” Id. The APA does not require more.

Crooks v. Mabus,

, 102–03 (D.D.C. 2015)

(rejecting argument that the agency allegedly did not consider

the plaintiff’s submissions when the record contained the

submissions and the agency referenced the submissions in its

final decision).

What the APA does require, however, is an explanation as to

why DHS determined that expulsion was an appropriate remedy for

Mr. Iaccarino’s misconduct. See Dickson v. Sec’y of Defense,

(D.C. Cir. 1995) (stating agency did not

adequately explain its decision when it merely listed facts and

conclusions without connecting them in a rationale way). Here,

after explaining the facts which formed the basis for its

finding of misconduct, the agency explained Mr. Iaccarino’s

right to judicial review. However, DHS “omitted a critical step-

-connecting the facts to the conclusion” that expulsion was the

appropriate sanction in Mr. Iaccarino’s case. See Dickson,

.

This omission is even more glaring because FLETC’s own

rules require such an explanation. As the misconduct manual

explains, the EPM must make two determinations when reviewing a

decision to expel a trainee. AR at 96. First, the EPM must

26 determine whether the misconduct was found by a preponderance of

the evidence.

Next, if the EPM finds that the misconduct

indeed did occur, the EPM “shall determine whether the

discipline imposed was appropriate.”

Moreover, the EPM is

required to issue a letter to the student containing its

“findings and decisions” and if the EPM decides to “uphold [the]

removal or expulsion, the EPM shall set forth the reasons why

this punishment was appropriate.”

(emphasis added). These

requirements track the APA requirement that an agency must

provide an explanation for its actions.

No such explanation was given in this case. The letter

issued to Mr. Iaccarino contains no reason for why his

punishment, expulsion, was the appropriate sanction. There is

only one sentence in the letter that is related to the

discipline imposed in this case: “I have determined that I

believe the alleged misconduct occurred and the discipline

imposed--expulsion--was appropriate.” AR at 1. This statement

that “the discipline imposed--expulsion--was appropriate” is the

kind of conclusory statement that this Court has repeatedly held

is insufficient to explain an agency’s action. See e.g., Tourous

Records,

(“The letter says nothing other than

that the ‘Affidavit of Indigency you submitted in lieu of a cost

bond is not adequately supported.’ That is not a statement of

reasoning, but of conclusion.”).

27 The defendants make two arguments in an attempt to salvage

this deficient explanation. First, the defendants argue that PS

King’s Inquiry Report adequately explained the expulsion. Defs.’

Mot., ECF No. 18-1 at 16–18. This argument fails because, as

explained above, the Inquiry Report clearly relied on erroneous

facts. See Supra at 21–22. The decision on appeal did not

consider those facts; rather it based its finding of misconduct

on facts borne out by the administrative record in explaining

why the misconduct occurred. AR at 1 (explaining the facts it

found persuasive in reaching its finding of misconduct).

Defendants’ second argument that the record contains ample

evidence to support Mr. Iaccarino’s expulsion similarly misses

the point. The defendants point to several FLETC rules that Mr.

Iaccarino allegedly violated as a rationale for the expulsion.

Defs.’ Reply, ECF No. 21 at 5–7. To be sure, the agency

explained its reasoning as to why the misconduct alleged was

substantiated by the preponderance of the evidence. AR at 1.

However, after the agency explained the basis for the finding of

misconduct, it provided no reason as to why the imposed sanction

was warranted based on that finding of misconduct. To the extent

the defendants seek to fill that void with references to other

violations that Mr. Iaccarino may have committed, this “court[]

may not accept [the defendants’] post hoc rationalizations” as a

substitute for DHS’s explanation, or lack thereof. See Remmie v.

28 Mabus,

(D.D.C. 2012) (stating agency’s

purported rationale for a final decision explained in its

briefing to the Court is no substitute for the agency’s actual

explanation).

The agency had several options at its disposal to

discipline Mr. Iaccarino for the misconduct it found had

occurred. It chose expulsion, effectively ending Mr. Iaccarino’s

career in federal law enforcement. The Court notes it is not

passing judgment on the agency’s methods or forms of discipline.

This Court’s limited role in the administrative scheme is to

determine if the agency adequately explained its decision. To

fulfill its obligation under that role, “this Court must be able

to ascertain the [agency’s] basis for the decision.” Reeder v.

James,

(D.D.C. 2015). DHS’s scarce

explanation in this case is insufficient to allow the Court to

ascertain DHS’s basis for its decision to expel Mr. Iaccarino.

See

Because DHS did not explain why expulsion was the

appropriate punishment, contrary to its own procedures, its

decision was arbitrary and capricious.

Mr. Iaccarino requests this Court to “order the Defendants

to rescind the expulsion actions from [his] records of

employment with the Defendants and issue a new final agency

decision consistent with the less severe penalties issued to the

other trainees” involved in the January 21, 2017 incident.

29 Compl., ECF No. 1 ¶ 63. However, “[w]hen an agency provides a

statement of reasons insufficient to permit a court to discern

its rationale, or states no reasons at all, the usual remedy is

a remand to the agency for additional investigation or

explanation.” Tourous Records, Inc.,

. Therefore,

this Court remands this matter to the agency so that it may

explain its reasoning for determining that expulsion is the

appropriate sanction for Mr. Iaccarino’s misconduct.

IV. CONCLUSION

Accordingly, the defendants’ Motion for Summary Judgment is

GRANTED IN PART because DHS’s finding of misconduct was

supported by substantial evidence and DENIED IN PART because DHS

failed to explain why expulsion was the appropriate sanction for

that misconduct. Furthermore, Mr. Iaccarino’s Cross–Motion for

Summary Judgment is GRANTED IN PART because of DHS’s failure to

explain its reasoning for the expulsion and DENIED IN PART

because DHS’s misconduct finding was supported by substantial

evidence and because the appropriate remedy is a remand to the

agency rather than the relief Mr. Iaccarino requests of the

Court. The Court REMANDS the matter to DHS for further

proceedings consistent with this Memorandum Opinion. An

appropriate Order accompanies this Memorandum Opinion.

30 SO ORDERED. Signed: Emmet G. Sullivan United States District Judge August 30, 2018

31