N. B. v. United States
| Decision Date | 03 August 2021 |
| Docket Number | 21-cv-1664 (GRB)(SIL) |
| Parties | N. B., Plaintiff, v. UNITED STATES of America, United States Department of Transportation, United States Merchant Marine Academy, John Does 1-10, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Michael D. Cassell, Hogan & Cassell, LLP, Jericho, NY, for Plaintiff.
James H. Knapp, United States Attorneys Office Eastern District of New York, Central Islip, NY, for Defendants United States of America, United States Department of Transportation, United States Merchant Marine Academy.
- Wasson v. Trowbridge , 382 F.2d 807, 812 (2d Cir. 1967)
Plaintiff N.B., a former cadet, brings the instant action against defendants United States Merchant Marine Academy (the "Academy"), the United States Department of Transportation, and the United States of America. Plaintiff claims defendants unlawfully disenrolled him as a result of an unfavorable determination at an Academy disciplinary hearing finding plaintiff sexually assaulted a fellow midshipman (the "complainant"). Plaintiff argues the hearing violated the Administrative Procedure Act (the "APA") and the Due Process Clause of the Fifth Amendment. Plaintiff claims that he is entitled to equitable and injunctive relief, as well as compensatory and punitive damages.
Plaintiff now seeks a preliminary injunction that would compel the Academy to immediately reinstate him, thereby permitting him to graduate from the Academy and receive his diploma, and further seeks a consolidated determination with the merits of the action. For the reasons set forth below, the plaintiff's request for consolidation with the merits is GRANTED, but his request for a preliminary injunction is DENIED and the matter DISMISSED.
On November 17, 2020, the Academy notified plaintiff that he was charged with violating Superintendent Instruction 2018-04, Sexual Assault, Sexual or Gender-Based Harassment, Relationship Violence, Stalking, and Retaliation Policy ("SI 2018-04") and Chapter 3.12 of the Midshipman Regulations, Sexual Assault, Sexual or Gender-Based Harassment, Relationship Violence, Stalking, and Sexual Exploitation ("Midshipman Regulations Chapter 3.12"). Administrative Record ("AR") 1. On November 30, 2020, the Academy's Executive Board (the "Board") held a hearing via Zoom over which the Deputy Superintendent presided and, by a vote of 3-0, found by a preponderance of the evidence that plaintiff had violated SI 2018-04 and Midshipman Regulations Chapter 3.12 by sexually assaulting the complainant, and recommended that plaintiff be disenrolled from the Academy. AR 307-10, 312. On December 10, 2020, the Superintendent upheld the Board's findings and disenrolled plaintiff. AR 312-13. That same day, plaintiff requested an appeal to the Maritime Administrator. AR 314. On March 16, 2021, the Acting Maritime Administrator upheld the Superintendent's decision. AR 946. On March 28, 2021, plaintiff filed the complaint in this action, seeking relief from his allegedly unlawful disenrollment from the Academy. DE 1. On April 5, 2021, the Court1 granted a Temporary Restraining Order (TRO) ordering that plaintiff be reinstated to the Academy and permitted to attend classes pending determination of plaintiff's preliminary injunction. DE 8. Plaintiff now moves for a preliminary injunction and seeks consolidation with a trial on the merits pursuant to Fed. R. Civ. P. 65. DE 12. Pending this Court's review of the Academy's disciplinary decision, plaintiff is currently in deferred graduate status.2 DE 19.
Plaintiff met complainant in September 2017 during their first year at the Academy. AR 26. Plaintiff and complainant had a consensual, intermittent relationship that lasted until December 2017. AR 26, 37, 135. During this time, plaintiff and complainant engaged in "rough" sex, but always with consent. AR 34, 37, 635-36, 437-38, 139. Plaintiff and complainant were disciplined by the regiment for having a relationship during their "plebe" year and subsequently terminated their relationship. AR 26, 135, 137. In March 2018, complainant began a relationship with another midshipman. AR 26. In November 2018, complainant's boyfriend left for his "sea year" just as plaintiff returned from his. AR 26, 43. Around this time, complainant and plaintiff reconnected after complainant sent plaintiff old photos via Facebook. AR 199-200, 359-60. Then, in December 2018, plaintiff and complainant had a number of sexual encounters that are the subject of the underlying dispute.
Complainant testified that plaintiff had sex with her three times without her consent in December 2018. In the first incident, plaintiff visited complainant's room one evening unannounced while her roommate was away. AR 28. Plaintiff sat himself down in a chair and started speaking with complainant about whether they should be friends. AR 28. As plaintiff drew himself closer to complainant, she climbed up onto her desk and then the windowsill to back away. AR 28. Plaintiff gave complainant a kiss, and she pushed away. "No, we shouldn't do this, I have a boyfriend," she told him. AR 28, 308. Undeterred, plaintiff wrestled with her on the desk, attempting to remove her shorts as she repeatedly told him no. AR 28. "It was a continuous protest," complainant testified. AR 28. She tried pushing him away, but plaintiff was too strong for her. AR 28. Plaintiff removed her shorts and penetrated her. AR 28, 308. Stunned, complainant cried that night, guilt-ridden that she had been "forced to cheat" on her boyfriend. AR 30.
Trying to pretend as if nothing happened, complainant blamed herself for not "fight[ing] back hard enough" and continued socializing with the same circle of friends, including plaintiff. AR 30-31. In the second incident, complainant and plaintiff were drinking in his room one night with friends. AR 31. All the chairs were taken, so complainant sat on the bed. AR 31. After the friends left, plaintiff sat on the bed beside complainant. AR 31. Complainant told plaintiff she did not want to have sex and pushed him away. AR 31. Plaintiff grabbed complainant's head, placed his genitals into her mouth, and forced her to perform oral sex. AR 31, 33-34. Suddenly, another midshipman entered the room, and complainant hid under the blanket. AR 31. Complainant tried to leave when the midshipman exited the room, but plaintiff begged her to stay and told her he loved her. AR 31. Complainant left once plaintiff fell asleep. AR 31. She was up all night, angry that once again she had been "forced to cheat." AR 31. In text messages, complainant told plaintiff that "this really has to stop," and "I really don't want anything anymore." AR 269.
The third incident took place when complainant returned to plaintiff's room to confront him over the coerced oral sex. AR 31. After she yelled at him, plaintiff became angry and shut the door before she could leave. AR 35. He then forced her over a chair, pinned her arm behind her back, and pulled down her pants. AR 31. Complainant struggled and repeatedly told plaintiff to stop and let her go. AR 31, 35-36. Ignoring her protests, plaintiff said he could not control himself. AR 31-32. Complainant faced the door as plaintiff penetrated her from behind, "almost as if [she] was being taunted." AR 32. Following this incident, complainant deleted plaintiff from her contacts and blocked him. AR 32.
According to plaintiff, he and complainant had four, not three, sexual encounters during the subject period. The first encounter on December 1, 2018 only involved foreplay. Plaintiff and complainant touched each other's intimate parts and complainant gave plaintiff a hickey. AR 205, 644, 651. Plaintiff and complainant, both in relationships at the time, convinced themselves this was not "technically" cheating. AR 205. Complainant did not recall this "half incident," and testified that plaintiff got a hickey because she bit him to stop anything further from happening. AR 473-75. After this encounter, complainant sent plaintiff a number of suggestive but ambiguous text messages. In one text, for example, complainant told plaintiff she felt "adicted [sic]" to sex and needs sex "at least once" a day but "it wouldn't be worth it" because she felt an emotional attachment to her boyfriend. AR 227-28.
In plaintiff's account, the second encounter occurred on December 5, 2018. One evening, plaintiff visited complainant in her room and sat in a chair beside her. AR 589. As plaintiff inched towards complainant, she backed away but did not climb onto the windowsill. AR 138. Plaintiff placed her leg on his lap, and they talked and laughed as he rubbed her feet. AR 138-39, 589. Although complainant told plaintiff, "no, I have a boyfriend," there was a "kinky, sexual, kind of playfulness about it" which he interpreted as role-play. AR 139. Measuring 5’ 4", plaintiff claims he does not have the stature to have sex with complainant on a desk. AR 330, 592. Plaintiff avers that complainant climbed up the ladder into her bunk bed and he joined her. AR 590. Plaintiff then locked the door, allegedly at complainant's instruction. AR 28, 590. Although complainant tried to stop plaintiff from pulling down her shorts, plaintiff maintains she held her shorts loosely in a manner suggestive of role-play. AR 140. Complainant then opened her legs, and they had sexual intercourse. AR 309. At the hearing, plaintiff testified that he...
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