Doolen v. Wormuth

• Decision Date: 20 July 2021
• Docket Number: Docket No. 18-2996,August Term, 2020
• Citation: 5 F.4th 125
• Parties: Isiah M. DOOLEN, Plaintiff-Appellant, v. Christine WORMUTH, in her official capacity as Secretary of the Army, Lieutenant General Darryl A. Williams, in his official capacity as Superintendent of the United States Military Academy, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

5 F.4th 125

Isiah M. DOOLEN, Plaintiff-Appellant,

v.Christine WORMUTH, in her official capacity as Secretary of the Army, Lieutenant General Darryl A. Williams, in his official capacity as Superintendent of the United States Military Academy, Defendants-Appellees.¹

Docket No. 18-2996

August Term, 2020

United States Court of Appeals, Second Circuit.

Argued: June 2, 2021

Decided: July 20, 2021

EDWARD G. WILLIAMS, Stewart Occhipinti, LLP, New York, N.Y., for Plaintiff-Appellant.

PETER ARONOFF, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, N.Y., for Defendants-Appellees.

Before: POOLER, NARDINI, Circuit Judges, and KAPLAN, District Judge.²

POOLER, Circuit Judge:

Isiah M. Doolen is a former cadet at the United States Military Academy at West Point. On October 21, 2015, following a disciplinary hearing, the Deputy Assistant Secretary of the Army, Military Personnel and Quality of Life, acting as the Secretary of the Army's designee, approved West Point's recommendation to separate Doolen and ordered Doolen to pay recoupment to the government of $226,662.00, the cost of Doolen's West Point education. Doolen sued the Secretary of the Army and the Superintendent of the United States Military Academy ("Defendants-Appellees") in federal court, claiming that (1) the applicable cadet removal procedures fail to provide due process and (2) Defendants-Appellees failed to follow West Point's own mandatory regulations in resolving Doolen's case, causing him substantial prejudice. The district court granted the government's motion to dismiss, and, in the alternative, for summary judgment, on all of Doolen's claims. Doolen appealed.

We conclude that West Point's cadet separation procedures satisfy due process and that the intra-military immunity doctrine, which bars judicial interference in discretionary military personnel decisions, renders Doolen's regulatory claims nonjusticiable. Therefore, we AFFIRM the judgment of the district court.

BACKGROUND

Doolen challenges the constitutionality of the disciplinary procedures that led to his separation from West Point in October 2015. Therefore, we begin with an outline of the procedures guiding cadet discipline and adjudicating punishments for any infractions. As discussed below, not every single infraction is subject to formal disciplinary proceedings—known as Article 10 proceedings—but Doolen's troubled history at West Point involved multiple serious infractions and, accordingly, multiple Article 10 proceedings.

I. Cadet Disciplinary Procedures

The Army has issued a series of regulations that govern the suspension and separation of cadets from West Point. One regulation provides "policy and procedures for the general governance and operation of the United States Military Academy," including procedures for cadet discipline and cadet separation from the Academy. Army Reg. 210-26 ¶ 1-1. Two other sets of regulations provide more detailed guidance on cadet disciplinary proceedings. See United States Corps of Cadets ("USCC") Regs. 351-1, 351-2. One of those regulations, USCC Regulation 351-1, contains the Cadet Disciplinary Code ("CDC"), which lists a variety of substantive offenses in Articles 1 through 9 and authorizes commanders to impose punishment on cadets in Article 10. Id. 351-1 ¶ 119. Additional guidance is available in the USCC Standing Operating Procedure ("SOP").

Generally, each cadet is considered either proficient or deficient in conduct. A cadet must be proficient to graduate. USCC Reg. 351-2 ¶ 501. Deficiency means exhibiting "conduct [that] is a substantial departure from the standards of conduct expected of members of the Corps of Cadets." Id. ¶ 504. Deficiency may lead to a cadet's separation if "the retention of [the] cadet is not considered to be in the best interests of the Corps of Cadets, the Military Academy or the United States Armed Forces." Id. ¶ 312(b).

Cadet discipline always involves input from the cadet's chain of command. Each company within the Corps of Cadets is commanded by a commissioned officer of the Army, known as a "tactical officer." Army Reg. 210-26 ¶ 1-19(c). Tactical officers command at the company, battalion, regimental, and brigade levels and are authorized to impose various levels of punishments on cadets. USCC Reg. 351-2 tbl. 1-2. As a general rule, commanders are to "use the least severe means sufficient to solve a disciplinary problem." Id. ¶ 102. Accordingly, less serious violations may be resolved through nonpunitive remedial measures, including on-the-spot corrections, counseling, extra training, and adjustment of performance grades. Id. ¶ 103. Commanders may punish more serious infractions under Article 10 of the CDC. Id. ¶ 104; see also id. 351-1 ¶ 119, art. 10. Attached to this opinion is a Sequence of Actions Timetable available within USCC Regulation 351-1 that may be helpful to reference while reviewing the components of an Article 10 proceeding, described below.

To initiate formal disciplinary proceedings under Article 10, a commander provides a cadet with written notice of the alleged infraction. See id. 351-2, Form 2-3. The cadet chooses whether to appear for a hearing, at which the cadet may present evidence in defense, extenuation, or mitigation of the disciplinary charges. See id. If the commander or designee conducting the hearing finds the cadet guilty of the alleged misconduct, the commander may impose various types of punishments on the cadet, including reprimand, withdrawal of privileges, or suspension. See id. The commander also must advise the cadet of the right to appeal the finding. See id.

Guilty cadets automatically incur demerits. Id. ¶ 105. Cadets have a maximum allowance of demerits within a six-month period based on their seniority, see id. tbl. 1-4, and a cadet who exceeds the applicable maximum may be subject to a more comprehensive conduct review, see id. ¶¶ 105, 502. Two alcohol policy violations may also trigger a conduct review. See id. ¶ 504(b)(3). During a conduct review, a cadet's chain of command opines on the cadet's overall conduct and recommends whether to maintain the cadet's conduct standing or refer the cadet to a conduct investigation ("CI") for further action. See id. ¶ 502.

CIs are non-adversarial hearings where an investigating officer ("IO") determines whether a cadet is proficient or deficient in conduct. See id. 351-1 ¶ 101. Prior to the hearing, a cadet is informed of the date of the hearing and all of the cadet's rights in connection with the review process. See id. ¶ 203. Cadets’ rights include the following: to receive written notice of the alleged deficiency and a list of all the actions being investigated; to have a "reasonable period of time to prepare for the CI"; to consult with legal counsel, who may help prepare a cadet for the hearing but may not represent the cadet at the hearing; to be present during the hearing or not to appear for it; to testify or to remain silent; to examine all documents to be considered by the CI; to make evidentiary objections; to call "reasonably available witnesses" and question and cross-examine witnesses; to present relevant evidence; and to receive a complete copy of the CI's findings and recommendations. Id. ¶ 105. No witnesses at the CI may testify as to whether the cadet should be retained or separated. See id. fig. 2-6 ¶ 4. The IO's findings "will either confirm the deficiency in conduct and render a recommendation for disposition to the chain of command or will find the cadet proficient in conduct." Id. ¶ 102(f).

After the CI, the Commandant, "the immediate commander of the Corps of Cadets," 10 U.S.C. § 7434(c), reviews the IO's findings and the entire record, USCC Reg. 351-2 ¶ 509. In preparation, the Regulations and Discipline Officer first forwards the complete CI record to the Staff Judge Advocate ("SJA"), who determines whether any legal errors have materially affected the proceeding and confirms that the IO's findings are supported by the evidence presented. Id. 351-1 ¶ 502(a)(3). After this "initial review," the SJA returns the packet to the Regulations and Discipline Officer, who forwards the entire packet to the Commandant. Id. ¶ 104, Sequence of Actions Timetbl.

If the cadet was found deficient, the Commandant may either place the cadet on conduct probation or forward a report to the Superintendent, who is "the commanding officer of the Academy and of the military post at West Point," 10 U.S.C. § 7434(b), for action, USCC Reg. 351-2 ¶ 509. If the Commandant chooses to forward the case to the Superintendent, the Regulations and Discipline Officer must first send the case packet, now with the Commandant's recommendation, back to the SJA. Id. 351-1 ¶ 114(m). If the SJA finds no legal objection within the record, the SJA will serve a copy of the SJA's review on the cadet, who has 72 hours to submit a written response to the entire packet. Id. ; see also id. ¶ 104, Sequence of Actions Timetbl. Together with the cadet's comments, if any, the entire record is sent to the Superintendent. Id. ¶ 104, Sequence of Actions Timetbl.

The Superintendent, in turn, may direct the cadet's retention with or without probation, transfer to a lower class, or suspension. Id. 351-2 ¶ 509. If the Superintendent instead decides separation is appropriate, the Superintendent must recommend it to the Secretary of the Army, the only officer authorized to direct separation. Id. ¶ 513(d). However, the Secretary has delegated separation authority to certain other positions at Army Headquarters. After a cadet enters the Second Class year (junior year), the applicable separation authority is the Deputy Assistant Secretary of the Army (Military Personnel and Quality of Life). Army Reg. 210-26 tbl. 7-2. If the delegated authority enters an order of separation, the cadet may appeal to a civilian review board, the Army Board...