Doe v. U.S. Merch. Marine Acad.

• Decision Date: 20 April 2018
• Docket Number: No. 18–CV–1870 (JFB) (AKT),18–CV–1870 (JFB) (AKT)
• Citation: 307 F.Supp.3d 121
• Parties: John DOE, Plaintiff, v. UNITED STATES MERCHANT MARINE ACADEMY, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

307 F.Supp.3d 121

John DOE, Plaintiff,

v.UNITED STATES MERCHANT MARINE ACADEMY, et al., Defendants.

No. 18–CV–1870 (JFB) (AKT)

United States District Court, E.D. New York.

Signed April 20, 2018

Gerald B. Lefcourt, Faith A. Friedman, and Sheryl E. Reich of Gerald B. Lefcourt, P.C., New York, New York, for Plaintiff.

Diane C. Leonardo–Beckmann and Megan Jeanette Freismuth of the United States Attorney's Office, New York, for Defendants.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, United States District Judge

Plaintiff John Doe ("plaintiff") brings the instant action against defendants United States Merchant Marine Academy (the "Academy"), James A. Helis, individually and in his capacity as Superintendent of the Academy, the United States Department of Transportation, and the United States of America (collectively, "defendants" or the "government"). Plaintiff claims that defendants improperly and unlawfully suspended him as a result of an unfavorable determination at a hearing at the Academy (the "Hearing"), thereby barring him from completing his final term and graduating with his class. Plaintiff claims that his Hearing and suspension violated the Academy's own rules under the Administrative Procedure Act (the "APA"), and violated the Due Process Clause of the Fifth Amendment. Plaintiff argues that he is, therefore, entitled to equitable and injunctive relief,¹ as well as compensatory and punitive damages.

Plaintiff now seeks a preliminary injunction that would compel the Academy to immediately reinstate plaintiff, permitting him to complete his third-term courses, sit for his licensing examination, and attend the Class of 2018 graduation ceremony.

For the reasons set forth below, the Court concludes that plaintiff has failed to demonstrate a likelihood of success on his APA claim, or on his claim that defendants violated his procedural and substantive due process rights.

With respect to the APA claim, the Court concludes that the Academy's disciplinary proceeding was conducted in a manner that is consistent with the rules and procedures promulgated by the Superintendent pursuant to the authority delegated to him by statute. Although plaintiff argues that various procedures were inconsistent with the Academy's existing rules and policies (including, among other things, proceeding by a Superintendent's Hearing instead of an Executive Board Hearing, and requiring plaintiff to cross-examine the alleged victim through written questions asked by the Superintendent), the Court disagrees. In addition, the Court finds unpersuasive plaintiff's argument that the Superintendent applied the wrong standard in determining whether the alleged victim consented because there is no indication in the record of any such misunderstanding. Moreover, there is substantial evidence in the record, if credited by the Superintendent (including the testimony of the alleged victim of the sexual assault, as well as plaintiff's friend who was present at various times on the night of the alleged assault), to support the Superintendent's decision. In particular, based upon the alleged victim's testimony, there is more than sufficient evidence in the record for the Superintendent to have concluded that she was unable to lawfully consent to sexual activity because of her intoxication. Although plaintiff's testimony contradicted the alleged victim's testimony, and plaintiff also called other witnesses at the Superintendent's Hearing who supported his version of events (and plaintiff emphasized that the Manhattan District Attorney's Office did not initiate charges after conducting an investigation), the Superintendent was entitled to weigh that evidence and make the necessary credibility findings in connection with the charges. Having carefully reviewed the record, the Court does not believe that plaintiff can possibly show that the decision was arbitrary or capricious (or contrary to law) based upon the manner in which the disciplinary proceeding was conducted or the evidence adduced at that proceeding.

The Court also concludes that plaintiff is not likely to succeed on his procedural due process claims. Plaintiff was provided with the following: (1) notice of the charges against him; (2) the right to review the investigatory file; (3) a Superintendent's Hearing during which, although plaintiff had to conduct the Hearing himself, he had the assistance of counsel and a faculty advisor; (4) at the Hearing (which lasted approximately twelve hours and involved eleven witnesses in connection with whether the charges were proven in Phase I), plaintiff was given the opportunity to cross-examine witnesses directly (with the exception of the alleged victim of the sexual assault, for whom he submitted written questions, and follow-up questions, to be asked by the Superintendent), and to testify and to call his own witnesses; and (5) an opportunity to give an opening and closing statement at the Hearing. Based upon well-settled Second Circuit precedent regarding due process requirements in the context of a disciplinary proceeding of this nature, and the Court's careful review of the record before it (including a review of the proceeding itself), the Court concludes that the due process protections afforded to plaintiff at the Hearing were more than sufficient to satisfy the constitutional standard under the Fifth Amendment in this type of disciplinary proceeding. Although plaintiff argues that due process required additional protections, the Court disagrees and emphasizes that due process does not mandate the use of all of the protections of a criminal trial in this type of disciplinary proceeding. To the extent that plaintiff challenges the implementation of the procedures at the Hearing (including the manner in which the Hearing was conducted, such as the number and length of breaks), the Court is not persuaded that any of those purported issues, either individually or collectively, rises to a constitutional magnitude or impacts the fundamental fairness of the proceeding. For example, the Court concludes that plaintiff's allegations of unconstitutional bias by the Superintendent in his dual role as prosecutor and neutral decision-maker are not supported by the case law or the record. Accordingly, plaintiff has not demonstrated a likelihood of success on the merits in connection with his procedural due process claims. For the same reasons, the Court concludes that plaintiff is unlikely to prevail under the exacting standard for demonstrating a substantive due process violation.

In light of the Court's determination that plaintiff has failed to demonstrate a likelihood of success on the merits with respect to any of his claims, he is not entitled to a preliminary injunction. Accordingly, the Court denies the motion.²

I. BACKGROUND

The following facts are taken from the complaint, as well as the parties' submissions to the Court.

A. The Statutory and Regulatory Framework

As discussed supra , the allegations in this case arise from a Hearing held by the U.S. Merchant Marine Academy. The Academy is a federal institution operated by the Maritime Administration ("MARAD"), which is an operating administration of the Department of Transportation. (Def. Mem. at 3.) Under 46 U.S.C. § 51301, the Secretary of Transportation is authorized to maintain the Academy as an institution of higher education to prepare its students for service in the U.S. Merchant Marine, among other objectives. 46 U.S.C. § 51301(a).

The Secretary of Transportation delegated authority to carry out its functions under this provision to the MARAD Administrator, 49 C.F.R. § 1.93, who, in turn, delegated direction and supervision of the Academy to the Academy's Superintendent. (Def. Mem. at 3 (citing Maritime Administrative Order, 150–1).) The Academy's operation and maintenance is governed by 46 U.S.C. § 51301 et seq. and regulations promulgated thereunder. Section 51318 establishes that the Superintendent is required to "prescribe a policy on sexual harassment, dating violence, domestic violence, sexual assault, and stalking applicable to the cadets and other personnel of the Academy." 46 U.S.C. § 51318(a). This provision sets forth the "[m]atters to be specified in the policy," including "a procedure for disciplinary action in cases of alleged criminal sexual assault involving a cadet or other Academy personnel," and "any other sanction to be imposed in a substantiated case of sexual harassment, dating violence ... or any other criminal sexual offense." Id. The Superintendent has also been delegated the authority to issue "all regulations necessary for the accomplishment of the Academy's mission." 46 C.F.R. § 310.67.

Pursuant to this statutory grant of authority, the Superintendent has promulgated policies and procedures governing sexual misconduct, including policies aimed at prevention, raising awareness, and conducting disciplinary actions. These regulations include Superintendent Instruction 2016–02 ("SI 2016–02"), which is the Academy's "Sexual Assault, Dating Violence, Domestic Violence, Stalking, Prevention Education, and Response Policy" (ECF No. 14–1 ("SI 2016–02") ), and Midshipman Regulations paragraphs 243(a) and (b) (ECF No. 3 at 48).³ Paragraph 243 prohibits sexual misconduct, which paragraph 243(a) defines as "acts at the Academy ... or under circumstances that are discrediting to the Academy or the midshipman, or are prejudicial to good order and discipline in the Regiment of Midshipmen." (Id. ) Paragraph 243(b) states that sexual misconduct includes "any actions of a sexual nature that would reasonably excite or satisfy the sexual desires of the actor ... includ[ing] kissing, touching, sexual intercourse of any sort, ... and indecent exposure." (Id. )

SI 2016–02 provides that the Academy "may pursue an administrative investigation and disciplinary proceedings" against an accused midshipman pursuant to the Midshipman Regulations or the Academy's "Procedures for Superintendent's Disciplinary...