Yu v. U.S. Dep't of Transp.

• Decision Date: 25 February 2020
• Docket Number: Case No. 18-cv-5560
• Parties: Elias YU, Plaintiff, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, United States Maritime Administration, United States Merchant Marine Academy, Mark H. Buzby, Individually and as Administrator of the United States Maritime Administration, and James A. Helis, Individually and as Superintendent of the United States Merchant Marine Academy, Defendants.
• Court: U.S. District Court — Eastern District of New York

440 F.Supp.3d 183

Elias YU, Plaintiff,

v.UNITED STATES DEPARTMENT OF TRANSPORTATION, United States Maritime Administration, United States Merchant Marine Academy, Mark H. Buzby, Individually and as Administrator of the United States Maritime Administration, and James A. Helis, Individually and as Superintendent of the United States Merchant Marine Academy, Defendants.

Case No. 18-cv-5560

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

Signed February 25, 2020

Richard Gonzalez, Gallo Vitucci Klar LLP, Woodbury, NY, for Plaintiff.

James H. Knapp, United States Attorneys Office Eastern District of New York, Central Islip, NY, for Defendants

Memorandum and Order

FEUERSTEIN, S.J., United States District Judge:

I. Introduction

Plaintiff Elias Yu ("Plaintiff" or "Yu"), formerly a first-class midshipman at the United States Merchant Marine Academy ("Academy"), seeks immediate readmission to the Academy, challenging the decision to disenroll him as improper and unlawful. (See Complaint, ECF No. 1.) Defendants United States Department of Transportation ("DOT"), United States Maritime Administration ("MARAD"), the Academy, Mark H. Buzby, Individually and as Administrator of MARAD ("Buzby" or "Administrator"), and James A. Helis, Individually and as Superintendent of the Academy ("Helis" or "Superintendent")(collectively, the "Defendants") moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiff's Complaint, arguing Plaintiff's only remaining claim is a request for judicial review of the disenrollment decision, an agency action, which is governed by the Administrative Procedure Act, 5 U.S.C. §§ 701 - 706 (the "APA"), and which action was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. (See ECF No. 15, hereafter, "Dismissal Motion"); see also ECF No. 18 (Defendants' Letter Motion to Strike) at 2.) Plaintiff opposes the Dismissal Motion. (See ECF No. 17 ; hereafter, "Opposition" or "Opp'n".) For the reasons articulated herein, the Dismissal Motion is GRANTED.

II. Background

A. Factual Background¹

1. Generally

(a .) The Defendants

The Academy is a federal institution of higher education operated by MARAD, an operating administration of the DOT. The Secretary of Transportation ("Secretary") is authorized by statute to maintain the Academy, which provides instruction to and prepares individuals for service in the U.S. Merchant Marine. The Secretary has delegated to the MARAD Administrator the authority to carry out the functions and exercise the authorities vested in the Secretary regarding the operation of the Academy, who has, in turn, delegated the direction and supervision of the Academy to the Academy's Superintendent. In that vein, the Superintendent is delegated authority to issue all regulations necessary for the accomplishment of the Academy's mission.

(b .) The Plaintiff

Yu was a first-class midshipman enrolled in the Academy's Class of 2019. He was majoring in Logistics and intermodal transportation, maintaining a cumulative grade point average above 3.0. Yu had been a member of the Academy's football team. As part of the Academy's "Sea Year" Program, in Fall 2017, Plaintiff was assigned to serve aboard the USNS Tippecanoe (hereafter, the "Vessel").

2. The Oversea Incident

On December 8, 2017, while the Vessel was docked in a port in Bahrain, Yu, other Academy midshipmen, and crewmembers of the Vessel went to local establishments while on authorized liberty. Yu alleges he consumed no more than seven (7) alcoholic drinks during that evening including an unknown drink handed to him by a female patron (hereafter, the "Unknown Drink"). Yu further alleges that, after consuming the Unknown Drink, he lost consciousness until he woke up in a holding cell under Bahraini governmental control but, "not knowing how he got there or what had happened." (Complaint, ¶26.) "Bahraini [g]overnment personnel informed Plaintiff that he was suspected of assaulting a Chinese national, stealing a vehicle, getting into a car crash and damaging property (motorcycles)." (Id. , ¶27.) Nearly seven (7) hours after his first drink, Yu's blood alcohol content ("BAC") was determined by Bahraini governmental authorities to be 0.214.

On December 9, 2017 and without the presence of counsel, Yu was first questioned by Bahraini governmental authorities and, then, by agents from the U.S. Naval Criminal Investigative Service ("NCIS"). He informed the NCIS agents of his suspicion that the Unknown Drink he consumed was spiked with a "date rape" drug. "[N]early thirteen (13) hours after the incident had occurred," NCIS collected blood and urine samples (hereafter, the "Samples") from Yu. (Id. , ¶34.)

3. Post-Oversea Incident Occurrences

While the Bahraini government did not press any charges against Yu, he was removed from the Vessel and returned to the United States. Upon his return, Yu was restricted to the Academy's grounds. Further, his removal from the Vesel prevented Yu from completing his requisite "Sea Year" studies.

On December 18, 2017, Yu's Samples were sent to the United States for testing; they did not arrive to Dover Air Force Base until January 5, 2018. Thereafter, the Samples were tested by the Forensic Toxicology Laboratory, part of the Armed Forces Medical Examiner System (hereafter, the "Lab"). The Lab's subsequent report did not: indicate the condition of the Samples upon arrival or upon testing; detect any ethanol or drugs; indicate any tests were conducted to detect Tramadol

, GHB, or similar commonly used "date rape" drugs.

On January 18, 2018, Yu voluntarily went to the Academy's clinic to request an alcohol dependency evaluation; his request was denied. On February 1, 2018, he sought an alcohol evaluation at Northwell-Zucker Hillside Hospital, Addiction Recovery Services (hereafter, "Hospital"). He was tested for alcohol multiple times at the Hospital; each time Yu tested negative for alcohol consumption. Yu also underwent a hair follicle drug test which tested for the presence of foreign substances during the approximate time frame of the Oversea Incident; that test came back positive for GHB and Tramadol

, two common "date rape" drugs. In comparison, standard midshipmen drug testing performed upon Yu in early November 2017 detected no drugs in Yu's system.

4. The Phase I Executive Board Disciplinary Hearing

"Per the Midshipman Regulations, Executive Board Disciplinary Hearing's [sic ] are divided in[to] two phases: Phase I (the ‘guilt’ phase) and Phase II (the ‘discipline/punishment’ phase). Phases are run consecutively." (Id. , ¶87.)

On March 14, 2018, the Academy served Yu with a "Notice of Executive Board Disciplinary Hearing" (hereafter, the "First Notice"). According to the First Notice, Yu was charged with seven (7) counts of violating the Academy's 2011 Midshipman Regulations,² to wit :

[Charge] (1) On or about 09 December 2017, you failed to conduct yourself with propriety, sobriety, decorum and sound judgment by consuming an excessive quantity of alcohol, physically assaulting a Chinese national, stealing the Chinese national's 2012 Volvo with his six year old and one and one-half year old children inside, driving the vehicle down an alleyway and crashing it into motorcycles, and then fleeing on foot, in Juffair, Bahrain, in violation of Sections 102, 104.a.2, 201.a, and 1104 of the Midshipman Regulations, and paragraph 3 of Superintendent Instruction 2016-04, USMMA Sea Year Conduct Policy;

[Charge] (2) On or about 09 December 2017, you physically assaulted a Chinese national, in Juffair, Bahrain, in violation of Sections 221.b and 1109.15 of the Midshipman Regulations;

[Charge] (3) On or about 09 December 2017, you consumed an excessive quantity of alcohol, and engaged in drunken behavior, including but not limited to, physical assault of a Chinese national, theft of the Chinese national's 2012 Volvo with his six year old and one and one-half year old children inside, drunken driving, damage of personal property of Saudi Arabian nationals, and fleeing on foot, in Juffair, Bahrain, in violation of Sections 204.a and 1105.c.3 of the Midshipman Regulations;

[Charge] (4) On or about 09 December 2017, you engaged in conduct which reflects discredit on the Academy and the Regiment of Midshipmen by consuming an excessive quantity of alcohol, physically assaulting a Chinese national, stealing the Chinese national's 2012 Volvo with his six year old and one and one-half year old children inside, driving the vehicle down an alleyway and crashing it into motorcycles, and then fleeing on foot from the scene of the crimes, in Juffair, Bahrain, in violation of Section 1109.11 of the Midshipman Regulations;

[Charge] (5) On or about 09 December 2017, you operated a vehicle in a reckless or careless manner in such a way as to endanger the lives or property of others, in Juffair, Bahrain, in violation of Section 1109.13 of the Midshipman Regulations;

[Charge] (6) On or about 09 December 2017, you stole a Chinese national's vehicle, in Juffair, Bahrain, in violation of Section 1109.18 of the Midshipman Regulations; and,

[Charge] (7) On or about 09 December 2017, you willfully vandalized the personal property of Saudi Arabian nationals, in Juffair, Bahrain, in violation of Section 1109.5 of the Midshipman Regulations.

(Complaint, ¶57 (emphasis eliminated)(hereafter, collectively, the "Charges").) Among other things, the First Notice identified witnesses the Academy intended to call and was served with an uncertified copy of the NCIS Investigation File (hereafter, the "Report"). Phase I of the Disciplinary Hearing was scheduled for March 21, 2018 but, upon Plaintiff's request, was adjourned to provide him additional time to prepare for that Hearing.

On April 11, 2018, a Second Notice of Hearing was issued by the Academy accompanied by an "NCIS Supplemental Report"; the cited authority, the Charges, and the Executive Board members who would conduct the Disciplinary Hearing remained...