Cassidy v. United States, 17-cv-4187 (SJF)(AYS)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtFEUERSTEIN, District Judge
Decision Date20 November 2018
Docket Number17-cv-4187 (SJF)(AYS)


17-cv-4187 (SJF)(AYS)


November 20, 2018


FEUERSTEIN, District Judge:

I. Introduction

On July 14, 2017, plaintiff Landon Cassidy ("plaintiff") commenced this action against defendants United States of America, Department of Transportation ("DOT") and the United States Merchant Marine Academy ("USMMA" or the "Academy") (collectively, "defendants"), pursuant to, inter alia, the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq., seeking judicial review of defendants' decision finding plaintiff guilty of certain disciplinary charges and disenrolling him from the USMMA (the "Disenrollment Decision") or, in the alternative, to compel defendants to permit plaintiff to appeal defendants' Disenrollment Decision. Pending before the Court is defendants' motion pursuant to Rules 12(b)(1) and 12(c) of the Federal Rules of Civil Procedure seeking to dismiss plaintiff's APA claims for lack of subject matter jurisdiction and for judgment on the pleadings dismissing plaintiff's claims for failure to state a claim for relief. For the reasons set forth below, defendants' motion is granted in part and denied in part.

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II. Background

A. Factual Background1

The USMMA is owned, operated and/or maintained by the DOT, which is an agency of the United States. (Complaint ["Compl."], ¶¶ 7-8).

Plaintiff was appointed a midshipman at the USMMA on or about June 28, 2016, into the class of 2020. (Compl., ¶ 6 and Ex. 8). Apart from the disciplinary proceedings underlying the instant action, plaintiff was not otherwise subject to discipline at the Academy. (Id.).

Two classmates of plaintiff, C.B. and C.C. (collectively, the "Complainants"), who were also midshipmen at the USMMA, were complainants in the underlying disciplinary proceedings, (Compl., ¶ 9), and another classmate, E.C., who was also a midshipman at the USMMA, was a witness in the underlying disciplinary proceedings. (Id., ¶ 10).

Rear Admiral James A. Helis ("Admiral Helis"), who was the Superintendent of the USMMA at all relevant times, presided over the underlying disciplinary proceedings. (Compl., ¶ 11). Ilene Kreitzer ("Kreitzer"), counsel to the USMMA, acted as the attorney for the Academy at all relevant times, including during the underlying disciplinary proceedings. (Id., ¶ 12).

On or about April 24, 2017, the USMMA brought the following misconduct charges against plaintiff ("the Charges"): (1) violations of "Superintendent Instruction 2016-02, Sexual Assault, Dating Violence, Domestic Violence, Stalking, Prevention Education, and Response Policy," (the "Superintendent's Instruction"), alleging that plaintiff committed a sexual assault with respect to the Complainants on or about January 24, 2017, February 5, 2017 and April 1,

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2017; and (2) violations of "Section 243 of the Midshipman Regulations, Sexual Misconduct," alleging that plaintiff "engag[ed] in actions of a sexual nature that would reasonably excite or satisfy the sexual desires of the actor (such as kissing, touching, sexual intercourse of any sort, sexually motivated nudity, and indecent exposure)," also with respect to the Complainants on the same dates. (Compl., ¶¶ 13-14 and Ex. 1). Plaintiff denies the Charges. (Id., ¶ 14; see also Plaintiff's Declaration ["Plf. Decl."] at 1).

The "Notice of Superintendent's Disciplinary Hearing" (the "Hearing Notice") received by plaintiff on April 24, 2017, indicates, inter alia, that a hearing was scheduled for May 1, 2017, i.e., seven (7) days later, and that Kreitzer would be present at the hearing on behalf of the USMMA "to provide due process guidance." (Compl., Ex. 1 at 1). In addition, the Hearing Notice identified eight (8) witnesses that the USMMA might call at the hearing and advised plaintiff that he had the following rights prior to and at the hearing: (i) to receive a copy of the investigatory file, subject to his acknowledgement and signature of a Confidentiality/Non-Disclosure Agreement, and any other documents that the Superintendent would consider in making his decision; (ii) "[t]o seek advice and assistance of legal counsel in the preparation of [his] case at [his] own expense[,]" and to have counsel present at the hearing "to consult and advise [him], but [who] may not otherwise participate in the proceedings[;]" (iii) to request a faculty or staff member of the Academy to act as an advisor, or to have the Superintendent appoint one on request; (iv) "[t]o be present during the entire hearing, except for the Superintendent's deliberations[;]" (v) to make opening and closing statements; (vi) to present evidence during each phase of the hearing, provided he notify the Superintendent's Office in writing no later than 10:00 a.m. the following day, i.e., April 28, 2017, of the identity of his

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witnesses2; (vii) to question all witnesses except the Complainants and two (2) of the other witnesses identified therein, although he could submit written questions for those two (2) witnesses to the Superintendent for his review and use if relevant to the proceedings; and (viii) to appeal a decision of disenrollment. (Id., Ex. 1 at 2-3). The Hearing Notice further indicates that the "Procedures for Superintendent's Disciplinary Hearing in the Case of Sexual Assault/Harassment" ("Hearing Procedures") were attached thereto.3 (Id. at 3).

Plaintiff alleges that the investigator, Jeffrey Thomas ("Thomas"), of the USMMA's Department of Public Safety, "acted aggressively and predisposed to proving [his] guilt." (Compl., ¶ 14; Plf. Decl., ¶ 2). According to plaintiff, Thomas "interviewed [him] alone, without another witness," and his interview notes, which omitted plaintiff's version of events, were used against him at the hearing. (Compl., ¶ 14; Plf. Decl., ¶ 2).

On or about May 1, 2017, Admiral Helis held a hearing with respect to the Charges against plaintiff, which was conducted in two (2) phases: "Phase I," or the "determination stage" of the disciplinary process, to determine whether the alleged violation(s) occurred; and "Phase II," or the "sanction stage" or "penalty phase" of the disciplinary process. (Compl., ¶¶ 15-16; Ex. 1 at 3, ¶ 6; and Ex. 4 at 5, ¶ 6(f)(v)). The Hearing Procedures provide, in pertinent part, that "Phase I will deal exclusively with the determination of the facts pertaining to the case at hand, the objective evaluation of those facts and a determination of whether the charge(s) have been proven by a preponderance of the evidence." (Id., Ex. 5, § III(A)(1)).

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The Superintendent's Instruction also provides certain procedures applicable at the hearing, including certain rights held by both the accused and the victim(s) throughout the disciplinary proceedings. (Compl., Ex. 4 at 5, ¶ 6(f)). Specifically, the Superintendent's Instruction provides, in pertinent part, that "[t]hroughout the disciplinary proceedings, the accused and the victim will have . . . [t]he right to exclude prior sexual history or past mental health history from admittance in Phase I (determination stage) of the disciplinary process. Past sexual violence findings may be admissible in Phase II (sanction stage) of the disciplinary process[.]" (Id., ¶ 6(f)(v)). According to plaintiff, during Phase I of the hearing, the USMMA called E.C. as a witness, who "was not a complainant and had no personal knowledge of the allegations underlying the Charges[,] . . . [and] testified solely about [his] alleged sexual history with her, which she claimed was unwanted." (Plf. Decl., ¶ 3; see also Compl., ¶ 20). Plaintiff further avers that he never understood his alleged sexual history with E.C. to be unwanted, and he "stopped any advancement when asked to me [sic] to stop. . . ." (Plf. Decl., ¶ 3; see also Compl., ¶ 20).

Plaintiff was not represented by counsel at the hearing. (Compl., ¶ 19; Plf. Decl., ¶ 4). According to plaintiff, Dr. Lori Townsend ("Townsend"), a layperson and staff member of the Academy, served as his advisor at the hearing, and she advised him not to bring an attorney "because it would make him 'look guilty.'" (Compl., ¶ 19; see also Plf. Decl., ¶ 4 and Compl., Ex. 3). Plaintiff also avers that although he made opening and closing statements at the hearing, Townsend advised him "not to testify on [his] own behalf, because the hearing 'went well' without [his] testimony." (Plf. Decl., ¶ 4; see also Compl., ¶ 20). Plaintiff called no witnesses during Phase I of the hearing. (Compl., Ex. 3 at 1). In addition, plaintiff asserts that "[d]uring the

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sentencing phase of the hearing, [he] was told [he] had no 'standing' to testify on [his] own behalf, and as a consequence [he] did not." (Plf. Decl., ¶ 4; see also Compl., ¶ 20).

On the same day as the hearing, Admiral Helis issued a written decision, i.e., the Disenrollment Decision, finding that plaintiff committed the violations set forth in the Charges based upon his review of the investigatory file; plaintiff's "voluntary opening and closing statements," which had been provided to him both orally and in writing; plaintiff's responses to his questions; and the testimony of the six (6) witnesses called by the USMMA during Phase I of the hearing, including the two (2) Complainants. (Compl., Ex. 3 at 1). Admiral Helis further determined to disenroll plaintiff from the Academy based upon his review of plaintiff's academic file and personnel jacket; the "additional information [plaintiff] provided during Phase II of the hearing, including the voluntary statement [he] provided[;]" the written statement of one (1) witness; the oral testimony of two (2) witnesses; and plaintiff's responses to Admiral Helis's questions.4 (Id. at 2).

The Disenrollment Decision provides, in relevant part,

"In accordance with Article 1011 of the Midshipman Regulations, you may appeal this decision to the

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