author: SHEPHERD, Circuit Judge.

text:
    Kevin Scott KARSJENS; David Leroy Gamble; Kevin John DeVillion; Peter Gerard Lonergan; James Matthew Noyer, Sr.; James John Rud; James Allen Barber; Craig Allen Bolte; Dennis Richard Steiner; Kaine Joseph Braun; Christopher John Thuringer; Kenny S. Daywitt; Bradley Wayne Foster; Brian K. Hausfeld, and all others similarly situated, Plaintiffs-Appellees v. Emily Johnson PIPER; Kevin Moser; Peter Puffer; Nancy Johnston; Jannine Hebert; Ann Zimmerman, in their official capacities, Defendants-Appellants Minnesota House of Representatives, Amicus on Behalf of Appellant(s) Eric Steven Janus; American Civil Liberties Union of Minnesota, Amici on Behalf of Appellee(s)
    No. 15-3485
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 12, 2016
    Filed: January 3, 2017

      Counsel who presented argument on behalf of the appellant was Alan Gilbert, AAG, of Saint Paul, MN. The following attorneys also appeared on the appellant brief; Nathan Brennaman, AAG, of Saint Paul, MN., Scott Hiromi Ikeda, AAG, of Saint Paul, MN., Alethea Marie Huyser, AAG, of Saint Paul, MN., Kathryn Iverson Landrum, AAG, of Saint Paul, MN., Aaron Edward Winter, AAG, of Saint Paul, MN.
    Counsel who presented argument on behalf of the appellee was Daniel E. Gustaf-son, of Minneapolis, MN. The following attorneys also appeared on the appellee brief; Karla M. Gluek, of Minneapolis, MN., David A. Goodwin, of Minneapolis, MN., Raina Borrelli, of Minneapolis, MN.
    The following attorneys appeared on the amicus brief of Minnesota House of Representatives in support of appellants; Kay Nord Hunt, of Minneapolis, MN., Bryan Richard Feldhaus, of Minneapolis, MN., Michael N. Leonard, of Minneapolis, MN.
    The following attorneys appeared on the amicus brief of Eric Janus and The American Civil Liberties Union of Minnesota in support of the appellees; Eric Steven Janus, of Saint Paul, MN., Teresa Nelson, of Saint Paul, MN.
    Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
   SHEPHERD, Circuit Judge.

Class plaintiffs, civilly committed sex offenders, bring a facial and as applied challenge under 42 U.S.C. § 1983, claiming their substantive due process rights have been violated by Minnesota’s Civil Commitment and Treatment Act and by the actions and practices of the managers of the Minnesota Sex Offender Program (MSOP). The Minnesota state defendants in this action are managers of MSOP— Emily Johnson Piper, Commissioner of the Minnesota Department of Human Services; Kevin Moser, MSOP Facilities Director at Moose Lake; Peter Puffer, MSOP Clinical Director; Nancy Johnston, MSOP Executive Director; Jannine Herbert, MSOP Executive Clinical Director; and Ann Zimmerman, MSOP Security Director (collectively “state defendants”). After several months of litigation, including a six-week bench trial, the district court found for plaintiffs and entered an expansive injunctive order. The district court applied incorrect standards of scrutiny when considering plaintiffs’ claims, thus we reverse the finding of substantive due process violations and vacate the injunctive relief order. We remand to the district court for further proceedings to address the remaining claims.

I.

A. Minnesota Statutory Structure

In 1994, the Minnesota legislature enacted the Minnesota Civil Commitment and Treatment Act: Sexually Dangerous Persons and Sexual Psychopathic Personalities (MCTA). MCTA is now codified at Minnesota Statute § 253D. Under the MCTA, a county attorney in Minnesota may petition a state district court to civilly commit a sexually dangerous person or a person with a sexual psychopathic personality to a secure treatment facility. Minn. Stat. Ann. § 253D.07(1)-(2). If the county attorney demonstrates by clear and convincing evidence that a person is a sexually dangerous person or has a sexual psychopathic personality, “the court shall order commitment for an indeterminate period of time and the committed person shall be transferred, provisionally discharged, or discharged, only as provided in this chapter.” Minn. Stat. Ann. § 253D(3)-(4). A person subject to commitment under MCTA is entitled to be represented by counsel, and if the person does not provide counsel for himself, the court appoints a qualified attorney to represent the person. Minn. Stat. Ann. § 253D.20.

Once committed under MCTA, a committed person or the executive director of the Minnesota Sex Offender Program may petition for a reduction in custody, which includes “transfer out of a secure treatment facility, a provisional discharge, or a discharge from commitment. ” Minn. Stat. Ann. § 253D.27. The petition is “filed with and considered by a panel of the special review board.” Id. These panels consist of “members experienced in the field of mental illness,” including at least one “psychiatrist or a doctoral level psychologist with forensic experience” and one attorney. Minn. Stat. Ann. § 253B.18(4c). The spe-dal review board must hold a hearing and “issue a report with written findings of fact and shall recommend denial or approval of the petition to the judicial appeal panel.” Minn. Stat. Ann. § 253D.27(3), (4). An appeal of the recommendation of the special review board may be made by the committed person, the county attorney, or the commissioner of the Department of Human Services (DHS) to the judicial appeal panel. Minn. Stat. Ann. § 253D.28. At a hearing, the judicial appeal panel receives evidence and makes a de novo consideration of the recommendation of the special review board. Id. Appeals of the decision of the judicial appeal panel may be made to the Minnesota Court of Appeals. Id; Minn. Stat. Ann. § 253B.19(5).

“A committed person may not petition the special review board any sooner than six months following either” the entry of the initial commitment order by the district court or appeal therefrom or resolution of a prior petition including exhaustion of any appeal rights. Minn. Stat. Ann. § 253D.27(2). The MSOP executive director may, however, petition for reduction in custody at any time. Id.

B. Minnesota Sex Offender Program (MSOP)

The State of Minnesota established, under the vested authority of the Commissioner of DHS, the MSOP. Under law, MSOP is to “provide specialized sex offender assessment, diagnosis, care, treatment, supervision, and other services to civilly committed sex offenders ... [which] may include specialized programs at secure treatment facilities ..., consultative services, aftercare services, community-based services and programs, transition services, or other services consistent with the mission of the Department of Human Services.” Minn. Stat. Ann. § 246B.02. MSOP maintains three main facilities to treat persons committed under MCTA. The largest facility is a secure facility located in Moose Lake, Minnesota, and it houses persons who are in the earliest stages of treatment. The second, secure facility is located in St. Peter, Minnesota, and it houses inmates who have progressed beyond the initial phase of treatment. A third facility known as Community Preparation Services (CPS) is located outside the secure perimeter in St. Peter. CPS is designed for persons in the final stages of treatment who are preparing for reintegration into the community.

Beginning in 2008, MSOP adopted a three-phase treatment program. Phase I focuses on rule compliance, emotional regulation, and treatment engagement, but individuals do not receive any specific sex offense therapy. In Phase II, MSOP provides therapy that focuses on identifying and addressing patterns of sexually abusive behaviors. MSOP emphasizes discussion and exploration of the committed individual’s history of sexually offensive behaviors along with the motivations of those behaviors. When a committed person reaches Phase III, MSOP builds on the skills learned in Phase II and focuses on reintegration into the community. Advancement through the phases is based on a Goal Matrix where the individual’s treatment process is scored using various factors. Although the MSOP Treatment Manual states that a committed person could be initially assigned to any phase of the program, no MSOP official could recall a person being assigned to anything but Phase I at the Moose Lake facility.

The district court found that since its inception in 1994, MSOP has accepted approximately 714 committed individuals, but no committed individual has been fully discharged from MSOP and only three people have been provisionally discharged from the program. The committed individuals represent about 4% of Minnesota’s registered sex offenders. Minnesota officials project that the number of civilly committed sex offenders will grow to 1,215 by 2022. Minnesota has the highest per-capita population of civilly committed sex offenders in the nation.

C. Claims

In December 2011, plaintiffs filed a pro se suit, pursuant to 42 U.S.C. § 1983, challenging the conditions of their confinement and certain MSOP policies and practices. The focus of the initial complaint concerned housing conditions, property possession, searches, visitation rights, disciplinary procedures, vendor choices, vocational training, and access to electronic devices. The complaint also claimed that MSOP did not provide constitutionally adequate treatment and thus violated plaintiffs’ due process rights. After obtaining counsel in January 2012, plaintiffs filed a First Amended Complaint raising generally the same claims as in the original complaint and seeking class certification. The district court granted class certification.

As litigation progressed, including discovery, the district court, in an effort to reach a settlement agreement, ordered the DHS commissioner to create a fifteen-member “Sex Offender Civil Commitment Advisory Task Force” to “examine and provide recommended legislative proposals to the Commissioner on the following topics:

A. The civil commitment and referral process for sex offenders;
B. Sex offender civil commitment options that are less restrictive than placement in a secure treatment facility; and
C. The standards and processes for the reduction in custody for civilly committed sex offenders.”

The court later ordered the creation of a MSOP Program Evaluation Team to evaluate the class plaintiffs’ treatment placement and phase progression.

In August 2013, plaintiffs moved for a declaratory judgment finding the MCTA unconstitutional on its face and as applied to plaintiffs. The plaintiffs argued that the statute is unconstitutional on its face because the statutory discharge standards are more difficult to overcome than the initial statutory commitment standards. For a person to be committed, the state has to show the person is a sexually dangerous person or a person with a sexual psychopathic personality and that the person is highly likely to reoffend. However, discharge under MCTA requires a showing that the person is “no longer dangerous.” In comparison to the commitment criteria, the plaintiffs argued the discharge standard is more stringent. The plaintiffs also claimed the statute is unconstitutional as applied because no person committed has ever been fully discharged from MSOP and because there is no automatic, independent, periodic review of an individual’s need for continuing commitment. In February 2014, the court denied plaintiffs’ motion for declaratory judgment and issued detailed instructions to the four Rule 706 experts it had appointed to assist the court in understanding the complexities of the case.

D. Bench Trial

The district court proposed hearing the matter in a bench trial. The state defendants objected, arguing that they had preserved the right to a jury trial. In response, plaintiffs moved to again amend their complaint to clarify their allegations and to remove any damages claim from the complaint. The magistrate judge granted the motion to file the Third Amended Complaint that clearly set forth facial and as applied claims based on due process violations and removed any damages claim. Because there were no longer damages claims and plaintiffs were only seeking injunctive relief, the district court ordered that the case be submitted at a bench trial.

Phase I of the bench trial occurred from February 9, 2015 to March 18, 2015. During the six-week trial, the district court heard testimony from all four Rule 706 experts, several named plaintiffs, and MSOP employees and staff. Following the trial, the district court entered a broad order finding MCTA unconstitutional facially and as applied. The court held that Minnesota’s civil commitment scheme for sex offenders is a punitive system without the safeguards found in the criminal justice system. It also held that MCTA “is not narrowly tailored and results in a punitive effect and application contrary to the purpose of civil commitment.” Specifically, the district court concluded:

section 253D is facially unconstitutional for the following six reasons: (1) section 253D indisputably fails to require periodic risk assessments and, as a result, authorizes prolonged commitment even after committed individuals no longer pose a danger to the public and need further inpatient treatment and supervision for a sexual disorder; (2) section 253D contains no judicial bypass mechanism and, as such, there is no way for Plaintiffs to timely and reasonably access the judicial process outside of the statutory discharge process to challenge their ongoing commitment; (3) section 253D renders discharge from the MSOP more onerous than admission to it because the statutory discharge criteria is more stringent than the statutory commitment criteria; (4) section 253D authorizes the burden to petition for a reduction in custody to impermissibly shift from the state to committed individuals; (5) section 253D contemplates that less restrictive alternatives are available and requires that committed individuals show by clear and convincing evidence that a less restrictive alternative is appropriate, when there are no less restrictive alternatives available; and (6) section 253D does not require the state to take an affirmative action, such as petition for a reduction in custody, on behalf of individuals who no longer satisfy the criteria for continued commitment.

The district court also determined MCTA was unconstitutional as applied for six reasons:

(1) Defendants do not conduct periodic independent risk assessments or otherwise evaluate whether an individual continues to meet the initial commitment criteria or the discharge criteria if an individual does not file a petition; (2) those risk assessments that have been performed have not all been performed in a constitutional manner; (3) individuals have remained confined at the MSOP even though they have completed treatment or sufficiently reduced then-risk; (4) discharge procedures are not working properly at the MSOP; (5) although section 253D expressly allows the referral of committed individuals to less restrictive alternatives, this is not occurring in practice because there are insufficient less restrictive alternatives available for transfer and no less restrictive alternatives available for initial commitment; and (6) although treatment has been made available, the treatment program’s structure has been an institutional failure and there is no meaningful relationship between the treatment program and an end to indefinite detention.

In reaching its conclusions as to both Counts 1 and 2, the facial and as-applied challenges, the district court applied “strict scrutiny, placing the burden on the state to show that the law is narrowly tailored to serve a compelling state interest” because “Plaintiffs’ fundamental right to live free of physical restraint is constrained by the curtailment of their liberty.” The court noted it would address the remaining claims in the Third Amended Complaint in a second phase of the trial and in a separate order.

E. Injunctive Relief

In a subsequent order, the district court directed MSOP to “conduct independent risk and phase placement reevaluation of all current patients at MSOP.” The court provided detailed directions as to how and when the reviews were to be conducted, including identifying certain, individuals to be evaluated first, and directed MSOP officials to file petitions for reduction in custody for all persons found eligible for such relief through the reevaluation. Defendants’ compliance with the court’s directives are to be monitored by a special master who has “authority to monitor compliance with the remedies” and “authority to implement and enforce the injunctive relief imposed by the Court and to mediate any dispute between the parties with regard to the implementation of the remedies.” The order further noted that the court “contemplates” entering “further specific relief against Defendants” in subsequent orders, foreseeing directions as to MSOP’s treatment structure and discharge process, training for MSOP employees, periodic evaluation of MSOP by external experts, and the development of a statewide public education campaign.

II.

The state defendants appeal the district court’s entry of declaratory judgment and the district court’s grant of in-junctive relief. First, they allege structural due process error based on the district judge’s bias against them. Second, the state defendants argue three jurisdictional defects. Lastly, the state defendants dispute the district court’s determinations on the merits, focusing specifically on whether the district court applied the proper standards of scrutiny to the plaintiffs’ due process claims. All issues raised by the state defendants concern questions of law, which we review de novo. See Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., — U.S. —, 134 S.Ct. 1744, 1748, 188 L.Ed.2d 829 (2014) (recognizing that questions of law are reviewed under de novo standard of review).

A. Judicial Bias

The state defendants claim that the district court pre-judged the case against them, violating their due process rights to a neutral decisionmaker. In support of this argument, state defendants first point to various comments made by the district court that are critical of MSOP and remarks suggesting that state officials should make drastic changes to the program. For instance, in one order, the district court concluded with the statement, “The program’s systemic problems will only worsen as hundreds of additional detainees are driven into MSOP over the next few years. The politicians of this great State must now ask themselves if they will act to revise a system that is clearly broken, or stand idly by and do nothing, simply awaiting Court intervention.” (Doc. 427 at 69 (footnote omitted).) Just prior to the bench trial, the court denied the state defendants’ motion to dismiss the Third Amended Complaint and for summary judgment. In that order, it stated, again in conclusion, “It is difficult for the Court to understand why the parties have not resolved this case in a manner that would address clients’ concerns, serve the public interest, promote public safety, and serve the interests of justice for all concerned. Justice requires no less.” (Doc. 828 at 43.)

Second, the state defendants argue that the Rule 706 experts were improperly used by the court to aid the plaintiffs in preparing and presenting their case. Although not appealing the court’s appointment of the Rule 706 experts, the state defendants argue that the court used those experts to prosecute the plaintiffs’ case and this demonstrates that the court had assumed the mantle of an advocate.

Third, the state defendants note that the Third Amended Complaint was filed almost three years after the commencement of the case and matched the court’s September 9, 2014 order as to the issues the court wished to address in the bench trial. Again, the state defendants are not challenging the district court’s order allowing the plaintiffs to file the Third Amended complaint; rather, the state defendants argue that it was improper for the court to counsel the plaintiffs on the claims it should present to the court. This Third Amended Complaint also had the effect of forcing a bench trial as the three previous versions of the complaint contained damages claims but the Third Amended Complaint only sought equitable relief.

Finally, the state defendants argue that the district court ordered the creation of a task force to provide legislative proposals for settlement purposes. The state defendants claim that the district court’s order providing for the creation of the task force provided that the report prepared by the task force would not be admissible at trial, but the court admitted the report at the bench trial and then considered and relied upon the report in deciding the case. The state defendants also claim the district court influenced who would be appointed to that task force. This process, the state defendants claim, also demonstrates improper judicial advocacy.

The state defendants argue the result of these various district court actions was obviously biased fact-finding by the court. According to the state defendants, the court assumed the role of an advocate instead of a neutral magistrate. Based on this alleged bias, the state defendants request that this court overturn the decisions of the district court as the bias constitutes a structural error requiring “automatic reversal,”

Parties to litigation are “entitled to due process, the essence of which is a fair trial before a tribunal free from bias or prejudice.” Gardiner v. A.H. Robins Co., 747 F.2d 1180, 1191 (8th Cir. 1984) (citing In re Murchison, 349 U.S. 133, 136-37, 75 S.Ct. 623, 99 L.Ed. 942 (1955)). “Ordinarily, when unfair judicial procedures result in a denial of due process, this court could simply find error, reverse and remand the matter.” Reserve Mining Co. v. Lord, 529 F.2d 181, 185 (8th Cir. 1976). In those cases where the court has found a biased or prejudiced district judge resulted in a due process violation, the evidence of bias was overwhelming. For instance, in Gard-iner, the district judge “stated that he believed the truth of plaintiffs’ allegations, adding that he had become an advocate for plaintiffs and that he was, in fact, prejudiced.” 747 F.2d at 1192.

In this matter, the state defendants point to a handful of remarks made over the course of months of litigation. These comments do give some cause for concern; if they are not premature remarks on the merits of the litigation, then they could in some instances be construed as policy pronouncements that risk straying beyond the judicial role. We are not convinced, however, that the actions and statements complained of, individually or collectively, establish that the district court was biased. Instead, the decisions of the district court in appointing the Rule 706 experts, allowing for a late amendment to the complaint, and appointing the task force were arguably done in an effort to streamline the complicated case and attempt to reach an amicable settlement between the parties. Further, unlike cases such as Gardiner, where one party was not allowed to present their case to the court, the district court did not prevent the state defendants from presenting their case to the district court in a six-week bench trial, and the district court gave due consideration to all arguments. In further proceedings, moreover, we are confident that the district court will be sensitive to avoiding even the appearance of bias or prejudgment of the merits.

B. Jurisdiction

The state defendants raise three challenges to the jurisdiction of the district court in this matter. First, the state defendants argue the plaintiffs lacked standing to challenge MCTA. The state defendants argue the latest version of the complaint alleges violations of the plaintiffs’ liberty interests, but the plaintiffs have not identified a named plaintiff or a member of the class who would be entitled to discharge if reevaluated. Instead, the plaintiffs merely speculate that some of them or some of the members of the class would be subject to discharge upon completion of a risk assessment. According to the state defendants, because the alleged harm is speculative, the plaintiffs have not shown an actual deprivation of their liberty, and thus they lack standing to bring this action.

We reject this argument. “Article III establishes three elements as a constitutional minimum for a party to have standing: (1) ‘an injury in fact,’ meaning ‘the actual or imminent invasion of a concrete and particularized legal interest’; (2) a causal connection between the alleged injury and the challenged action of the defendant; and (3) a likelihood that the injury will be redressed by a favorable decision of the court.” Sierra Club v. U.S. Army Corps of Eng’rs, 645 F.3d 978, 985-86 (8th Cir. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). “This means that, throughout the litigation, the plaintiff ‘must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.’” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)). Here, we agree with the class plaintiffs that they have standing because their claim is not that they are all entitled to release but rather that their constitutional rights are being violated because MCTA and MSOP’s implementation of MCTA violates the due process clause. The class plaintiffs are seeking certain procedural protections such as periodic reviews of their confinement and placement in appropriate facilities. All plaintiffs are committed under MCTA and detained in MSOP. Thus, if their allegations are true, the plaintiffs have suffered a concrete injury caused by the challenged action that could be redressed by appropriate injunctive relief.

Next, the state defendants argue that this action is barred under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), because it is an attempt to use 42 U.S.C. § 1983 to challenge the fact or duration of their confinement and such claims can be brought only in a habeas petition under 28 U.S.C. § 2254. “[A] state prisoner’s claim for damages is not cognizable under 42 U.S.C. § 1983 if ‘a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,’ unless the prisoner can demonstrate that the conviction or sentence has previously been invalidated.” Edwards v. Balisok, 520 U.S. 641, 643,117 S.Ct. 1584, 137 L.Ed.2d 906 (1997) (quoting Heck, 512 U.S. at 487, 114 S.Ct. 2364). This action, however, would not necessarily imply the invalidity of any of the plaintiffs’ commitment. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1140 (9th Cir. 2005) (noting Heck applies to civilly committed persons as well as prisoners). They do not allege that their initial commitment was invalid. Nor is it alleged that any specific class members should be immediately released. Instead, the plaintiffs claim that they should receive relief including regular, periodic assessment reviews to determine if they continue to meet the standards for civil commitment. It is conceivable that upon receiving an assessment none of the plaintiffs would be eligible for release, despite the district court’s finding otherwise. Because the injunctive relief sought would not necessarily imply the invalidity of the plaintiffs’ commitment, this action is not barred under Heck or Preiser.

Finally, the state defendants challenge the subject matter jurisdiction of the federal courts under the Rooker-Feld-man doctrine. The defendants claim plaintiffs are seeking through this action to reverse “hundreds” of state-court judgments that have held MCTA to be constitutional when raised by individual defendants challenging the application of MCTA to them. “The Rooker-Feldman doctrine is narrow; it applies only to ‘cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.’” Edwards v. City of Jonesboro, 645 F.3d 1014, 1018 (8th Cir. 2011) (quoting Exxon Mobil Corp. v, Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005)). “The doctrine thus occupies a ‘narrow ground’ and does not ‘stop a district court from exercising subject-matter jurisdiction simply because a party attempts to litigate in federal court a matter previously litigated in state court.’” Banks v. Slay, 789 F.3d 919, 922 (8th Cir. 2015) (quoting Exxon Mobil Corp., 544 U.S. at 284, 293, 125 S.Ct. 1517). As previously discussed, the class plaintiffs are not seeking review and rejection of state court judgments nor are the plaintiffs claiming to have suffered harm because of prior state court judgments which have held MCTA constitutional. Through this action, plaintiffs are seeking prospective injunctive relief based on a theory that the MCTA violates their fundamental liberty rights. Therefore the narrow Rooker-Feldman bar does not apply to this action.

C. Standards of Scrutiny

The district court held that, because the committed individuals have a fundamental right to liberty, strict scrutiny was the proper standard of scrutiny to apply to plaintiffs’ facial and as-applied due process claims. The district court therefore determined MCTA had to be narrowly tailored to achieve a compelling governmental purpose and that it failed to meet this narrow tailoring both facially and as applied. We disagree with application of the strict scrutiny standard.

i. Facial Due Process

The United States Constitution guarantees that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The Supreme Court has not expressly identified the proper level of scrutiny to apply when reviewing constitutional challenges to civil commitment statutes.” United States v. Timms, 664 F.3d 436, 446 (4th Cir.), cert. denied, — U.S.-, 133 S.Ct. 189, 184 L.Ed.2d 237 (2012). However, to date, the strict scrutiny standard applied by the district court is reserved for claims of infringements on “fundamental” liberty interests upon which the government may not infringe “unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). According to the Supreme Court, “fundamental rights and liberties” are those “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (internal citations and quotation marks omitted).

Although the Supreme Court has characterized civil commitment as a “significant deprivation of liberty,” Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), it has never declared that persons who pose a significant danger to themselves or others possess a fundamental liberty interest in freedom from physical restraint. See Foucha v. Louisiana, 504 U.S. 71,116,112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (Thomas, J., dissenting) (criticizing the majority’s analysis of a due process challenge to a civil commitment statute because, “[fjirst, the Court never explains whether we are dealing here with a fundamental right, and ... [s]econd, the Court never discloses what standard of review applies”). Rather, when considering the constitutionality of Kansas’s Sexually Violent Predator Act, the Court stated “[although freedom from physical restraint ‘has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action,’ that liberty interest is not absolute.” Kansas v. Hendricks, 521 U.S. 346, 356,117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (quoting Foucha, 504 U.S. at 80, 112 S.Ct. 1780). The Court noted that many states provide for the involuntary civil commitment of people who are unable to control their behavior and pose a threat to public health and safety, and “[i]t thus cannot be said that the involuntary civil confinement of a limited subclass of dangerous persons is contrary to our understanding of ordered liberty.” Id at 357, 117 S.Ct. 2072 (citing Addington, 441 U.S. at 426, 99 S.Ct. 1804). When considering the due process implications of a civil commitment case, the Supreme Court stated “[a]t the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972) (emphasis added).

Accordingly, the proper standard of scrutiny to be applied to plaintiffs’ facial due process challenge is whether MCTA bears a rational relationship to a legitimate government purpose. See id.

ii. As-Applied Due Process

When it considered the proper standard to apply, the district court stated substantive due process protected against two types of government action: action that shocks the conscience or action that interferes with rights implicit in the concept of ordered liberty. The district court then proceeded to discuss how the state defendants’ actions interfered with the class plaintiffs’ liberty interests to be free from restraint and thus was subject to a strict scrutiny analysis. The district court applied the improper standard to consider an as-applied challenge when it determined there were two types of government action that could violate the class plaintiffs’ substantive due process rights.

Following the Supreme Court’s decision in County of Sacramento v. Lewis, 523 U.S. 833,118 S.Ct. 1708,140 L.Ed.2d 1043 (1998), this court held to prevail on an as-applied due process claim, that the state defendants’ actions violated the plaintiffs’ substantive due process rights, the plaintiffs “must demonstrate both that the [state defendants’] conduct was conscience-shocking, and that the [state defendants] violated one or more fundamental rights that are ‘deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.’” Moran v. Clarke, 296 F.3d 638, 651 (8th Cir. 2002) (en banc) (Bye, J., concurring and writing for a majority on this issue) (emphasis in original) (quoting Glucksberg, 521 U.S. at 720-21, 117 S.Ct. 2258 (1997)). The district court, citing to a pre-Lewis decision of United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), used the former disjunctive standard and focused only on whether there was a fundamental right at issue, and having determined that there was a fundamental right at issue, the district court applied a strict scrutiny test to both the facial and as-applied challenges.

As indicated above, however, the court should determine both whether the state defendants’ actions were conscience-shocking and if those actions violated a fundamental liberty interest. To determine if the actions were conscience-shocking, the district court should consider whether the state defendants’ actions were “egregious or outrageous.” See Montin v. Gibson, 718 F.3d 752, 755 (8th Cir. 2013) (quoting Burton v. Richmond, 370 F.3d 723, 729 (8th Cir. 2004)). To meet this high standard, we have explained that the alleged substantive due process violations must involve conduct “so severe ... so disproportionate to the need presented, and ... so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.” Moran, 296 F.3d at 647 (quoting In re Scott Cnty. Master Docket, 672 F.Supp. 1152, 1166 (D. Minn. 1987)). Accordingly, the district court applied an incorrect standard in considering the class plaintiffs’ as-applied substantive due process claims.

D. Substantive Due Process

i. Facial Challenge

The district court announced six grounds upon which MCTA was facially unconstitutional under the strict scrutiny standard — (1) MCTA did not require periodic risk assessments of all committed persons, (2) MCTA did not provide for a judicial bypass mechanism, (3) MCTA rendered discharge from MSOP more onerous than admission because discharge criteria was more stringent than admission criteria, (4) MCTA impermissibly shifted the burden to petition for a reduction in custody to the committed person, (5) MCTA did not provide less restrictive alternatives although the statute indicated such would be available, and (6) MCTA did not require state officials to petition for a reduction in custody on behalf of committed individuals who might qualify for a reduction. As we held above, the appropriate standard is whether MCTA bears a reasonable relationship to a legitimate government purpose. To prevail in a facial challenge, the class plaintiffs bear the burden of “establishing] that no set of circumstances exists under which [MCTA] would be valid.” See United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). None of the six reasons the district court found MCTA facially unconstitutional under the strict scrutiny review survives the reasonable relationship review.

Reasonable relationship review is highly deferential to the legislature. No one can reasonably dispute that Minnesota has a real, legitimate interest in protecting its citizens from harm caused by sexually dangerous persons or persons who have a sexual psychopathic personality. See Addington, 441 U.S. at 426, 99 S.Ct. 1804 (“[T]he state ... has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill”). The question then is whether MCTA is reasonably related to this interest. The burden to prove the statute is not rationally related to a legitimate government interest is borne by the class plaintiffs, whereas the burden to show that a statute is narrowly tailored to serve a compelling government interest is borne by the state. See FCC v. Beach Comm’ns, Inc., 508 U.S. 307, 314-15, 113 S.Ct. 2096, 124 L.Ed.2d (1993) (“On rational-basis review, .... those attacking the rationality of the legislative classification have the burden ‘to negate every conceivable basis which might support it.’ ” (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973))); Republican Party of Minn. v. White, 416 F.3d 738, 749 (8th Cir. 2005) (“The strict scrutiny test requires the state to show that the law that burdens the protected right advances a compelling state interest and is narrowly tailored to serve that interest.” (citations omitted)).

The Minnesota Supreme Court has had opportunity to consider whether the then-applicable Minnesota commitment statute violated due process. In In re Blodgett, 510 N.W.2d 910, 916 (Minn. 1994), that court held, “[s]o long as civil commitment is programmed to provide treatment and periodic review, due process is provided. Minnesota’s commitment system provides for periodic review and reevaluation of the need for continued confinement.” The next year, the Minnesota Supreme Court heard Call v. Gomez, 535 N.W.2d 312 (Minn. 1995), and considered a due process challenge to MCTA. Referring back to Blodgett, the court held, “once a person is committed, his or her due process rights are protected through procedural safeguards that include periodic review and reevaluation, the opportunity to petition for transfer to an open hospital, the opportunity to petition for full discharge, and the right to competent medical care and treatment.” Id. at 318-19.

MCTA is facially constitutional because it is rationally related to Minnesota’s legitimate interests. The district court expressed concerns about the lack of periodic risk assessments, the availability of less restrictive alternatives, and the processes for seeking a custody reduction or a release, MCTA provides “proper procedures and evidentiary standards” for a committed person to petition for a reduction in his custody or his release from confinement. See Hendricks, 521 U.S. at 357,117 S.Ct. 2072. Any committed person can file a petition for reduction in custody. Minn. Stat. Ann. § 253D.27(2). The petition is considered by a special review board consisting of experts in mental illness and at least one attorney. Minn. Stat. Ann. § 253B.18(4c)(a). That panel conducts a hearing and issues a report with recommendations to a judicial appeal panel consisting of Minnesota district judges appointed to the judicial appeal panel by the Chief Justice of the Supreme Court. Minn. Stat. Ann. §§ 253D.27(3)-(4), 253B.19(1). Through this process, the committed person “has the right to be represented by counsel” and the court “shall appoint a qualified attorney to represent the committed person if neither the committed person nor other provide counsel.” Minn. Stat. Ann. § 253D.20. Appeal of the decision of the special judicial panel may be taken the Minnesota Court of Appeals. Minn. Stat. Ann. §§ 253D.28, 253B.19(5). Finally, a committed person is entitled to initiate a new petition six months after the prior petition is concluded. Minn. Stat. Ann. § 253D.27(2).

We conclude that this extensive process and the protections to persons committed under MCTA are rationally related to the State’s legitimate interest of protecting its citizens from sexually dangerous persons or persons who have a sexual psychopathic personality. Those protections allow committed individuals to petition for a reduction in custody, including release; therefore, the statute is facially constitutional.

ii. As-Applied Challenge

We agree with the state defendants that much of the district court’s “as-applied” analysis is not a consideration of the application of MCTA to the class plaintiffs but is a criticism of the statutory scheme itself. For instance, the court found that the statute was unconstitutional as applied to the plaintiffs because the state defendants do not conduct periodic risk assessments. However, the class plaintiffs acknowledge that MCTA does not require periodic risk assessments but those assessments are performed whenever a committed person seeks a reduction in custody. The district court also found as-applied violations in aspects of the treatment received by the committed persons, specifically concluding that the treatment program’s structure has been an “institutional failure” and lacks a meaningful relationship between the program and an end to indefinite detention. However, we have previously held that although “the Supreme Court has recognized a substantive due process right to reasonably safe custodial conditions, [it has not recognized] a broader due process right to appropriate or effective or reasonable treatment of the illness or disability that triggered the patient’s involuntary confinement.” See Strutton v. Meade, 668 F.3d 549, 557 (8th Cir. 2012) (alteration in original) (quoting Elizabeth M. v. Montenez, 458 F.3d 779, 788 (8th Cir. 2006)). Further, as the Supreme Court recognized, the Constitution does not prevent “a State from civilly detaining those for whom no treatment is available.” Hendricks, 521 U.S. at 366, 117 S.Ct. 2072. Nevertheless, as discussed previously, to maintain an as-applied due process challenge, the class plaintiffs have the burden of showing the state actors’ actions were conscience-shocking and violate a fundamental liberty interest. See Moran, 296 F.3d at 651.

None of the six grounds upon which the district court determined the state defendants violated the class plaintiffs’ substantive due process rights in an as-applied context satisfy the conscience-shocking standard. Having reviewed these grounds and the record on appeal, we conclude that the class plaintiffs have failed to demonstrate that any of the identified actions of the state defendants or arguable shortcomings in the MSOP were egregious, malicious, or sadistic as is necessary to meet the conscience-shocking standard. Accordingly, we deny the claims of an as-applied due process violation.

III.

Accordingly, we reverse the district court’s finding of a constitutional violation and vacate the injunctive order. We remand this matter to the district court for further proceedings on the remaining claims in the Third Amended Complaint.

      . MCTA defines “sexually dangerous person” as “a person who: (1) has engaged in a course of harmful sexual conduct ...; (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual conduct_” Minn. Stat. Ann. § 253D.02(16).

      . MCTA defines "sexual psychopathic personality” as "the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses and, as a result, is dangerous to other persons.” Minn. Stat. Ann. § 253D.02(15).

      . "The following factors must be considered in determining whether a transfer [out of a secure treatment facility] is appropriate: (1) the person’s clinical progress and present treatment needs; (2) the need for security to accomplish continuing treatment; (3) the need for continued institutionalization; (4) which facility can best meet the person’s needs; and (5) whether transfer can be accomplished with a reasonable degree of safety for the public.” Minn. Stat. Ann. § 253D.29(1).

      . "The following factors are to be considered in determining whether a provisional discharge shall be granted: (1) whether the committed person’s course of treatment and present mental status indicate there is no longer a need for treatment and supervision in the committed person’s current treatment setting; and (2) whether the conditions of the provisional discharge plan will provide a reasonable degree of protection to the public and will enable the committed person to adjust successfully to the community.” Minn. Stat. Ann. § 253D.30(1).

      . "A person who is committed as a sexually dangerous person or a person with a sexual psychopathic personality shall not be discharged unless it appears to the satisfaction of the judicial appeal panel, after a hearing and recommendation by a majority of the special review board, that the committed person is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision.” Minn. Stat. Ann. § 253D.31.

      . "The Supreme Court shall establish an appeal panel composed of three judges and four alternate judges appointed from among the acting judges of the state.” Minn. Stat. Ann. § 253B.19(1).

      . Federal Rules of Evidence permit district courts to appoint independent experts to assist the court understand complex and difflcult issues. Fed. R. Evid. 706 (court may "[o]n a party’s motion or on its own” appoint an expert to serve on behalf of the court),

      . Neither the class plaintiffs nor the state defendants objected to the creation of the Task Force.


source: Caselaw Access Project

author: EDWARDS, Senior Circuit Judge:

license: Public Domain

text:
    Michael CROOKS, Appellant v. Raymond Edwin MABUS, Jr., Secretary of the Navy and Dee Mewbourne, Rear ADM, USN, Naval Service Training Command, Appellees
    No. 15-5212
    United States Court of Appeals, District of Columbia Circuit.
    Submitted October 14, 2016
    Decided December 23, 2016

      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.
   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 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 body-weight 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 reported] 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 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.” De-certification 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 certification 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 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 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 1533.9K 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, 358-69 (6th Cir. 1998)). We disagree.

“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, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)). But cf. Johnson v. United States, — U,S. -, 135 S.Ct. 2551, 2556-62, 192 L.Ed.2d 569 (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 2561, 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, 93 S.Ct. 2880, 37 L.Ed.2d 796 (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, 94 S.Ct. 1633,40 L.Ed.2d 15 (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, 94 S.Ct. 1633 (Powell, J. concurring); id. at 177, 94 S.Ct. 1633 (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, 94 S.Ct. 1633. Rather, as the Court noted, “[t]he Civil Service 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, 94 S.Ct. 1633 (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 decer-tification is appropriate. These evaluations include a variety of metrics, such as: “[a]dvance classroom preparation; [i]n-structor/cadet rapport; [and personal conduct.” NJROTC Instructor Observation Report, JA 52. This guidance, paired with the heavy burden Appellant faces in demonstrating that the regulation is impermis-sibly vague in “all of its applications,” Village of Hoffman Estates, 455 U.S. at 495, 102 S.Ct. 1186, renders his facial challenge to CNETINST 1533.9K, Article 404(e)(5) unavailing.

Appellant also cannot credibly assert that the Navy’s regulation is imper-missibly 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.” 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.

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]s-suming, 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, 92 S.Ct. 2701, 33 L.Ed.2d 548 (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 must, instead, have a legitimate claim of entitlement to it.

Id. at 577, 92 S.Ct. 2701.

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 v. Hinson, 78 F.3d 688, at 692 (D.C. Cir. 1996); 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 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^] 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 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, “castigación] 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 decer-tification 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, 96 S.Ct. 1155, 47 L.Ed.2d 405 (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 — ie., 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 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).

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 [96 S.Ct 1155, 47 L.Ed.2d 405] (1976). Even a plaintiff who receives an admittedly defamatory recommendation from a pri- or 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 plaintiffs reputation” alone. Siegert v. Gilley, 500 U.S. 226, 234 [111 act 1789, 114 L.Ed.2d 277] (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 [96 S.Ct 1155].

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, 96 S.Ct. 1155, 47 L.Ed.2d 405 (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.

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 dubi-tante on this point. We need not struggle further with this issue, however, because we agree with the District Court that, even “[assuming, 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, 96 S.Ct. 893, 47 L.Ed.2d 18 (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.

Appellant also claims, without any record citation, that the Navy “stymiefd]” 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 pri- or to his decertification, and, with the assistance of counsel, to each of the Boards reviewing the decision. As the • defendants 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 plaintiffs 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” de-certified 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 APÁ’s “arbitrary and capricious” standard and its “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, 103 S.Ct. 2856, 77 L.Ed.2d 443 (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 Trsnsp. 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 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, 103 S.Ct. 2856)). As the District Court’s opinion carefully lays out, “the 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.