Yu v. United States Department of Transportation

UNITED STATES DISTRICT COURT 2/25/2020 4  :31 pm

EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------X U.S. DISTRICT COURT

ELIAS YU, EASTERN DISTRICT OF NEW YORK

Plaintiff, LONG ISLAND OFFICE

Case No. 18-cv-5560

-against- Memorandum and Order

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.

----------------------------------------------------------X

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

1 The facts alleged in Plaintiff’s Complaint are assumed to be true for purposes of deciding the

Dismissal Motion.

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;

2 As revised in Superintendent Notice 2016-17 USMMA Sea Year Policy.

[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 unchanged. In addition, the

Academy identified its intended witnesses. In response, the Plaintiff sent the Academy his list of

intended witnesses. When the Academy requested Plaintiff agree to waive the testimony of the

Academy’s witnesses, Plaintiff declined; the Phase I Disciplinary Hearing was again adjourned

without date.

On June 27, 2018 and pursuant to Superintendent Instruction 2018-07, the Academy

issued new Midshipman Regulations, which allegedly superseded the prior 2011 Midshipman

Regulations. The Academy’s final3 Notice of Hearing was issued in accordance with the 2018

Midshipman Regulations, but the Charges remained unchanged, citing the 2011 Midshipman

Regulations; additionally, the final Notice of Hearing contained a footnote acknowledging the

3 The final Hearing Notice was identified as the “Fourth” Hearing Notice; however, the

Academy did not issue a “Third” Hearing Notice.

revised 2018 Midshipman Regulations, instructing that the Executive Board would be following

the hearing procedures set forth in the 2018 Midshipman Regulations, but also stating that

“[s]ince the alleged misconduct with which you are charged occurred when the previous

Midshipman Regulations were in effect, the [C]harges reference the sections from those 2011

Midshipman Regulations.” (Id., ¶78.) Thereafter, the parties exchanged amended witness lists.

Phase I of Yu’s Disciplinary Hearing commenced on July 25, 2018. Deputy

Superintendent Rear Admiral Susan L. Dunlap chaired the five-member Executive Board; Helis

“did not participate in-person at the hearing; he did not listen to live witnesses or to the Plaintiff;

and, he did not question witnesses of the Plaintiff.” (Id., ¶86.) The Academy called three

witnesses, none of whom were: NCIS agents or investigators; the Chinese national who was the

alleged assault victim; Bahraini government officials or other individuals involved in the

Oversea Incident; Lab technicians; or experts regarding drug or alcohol consumption. Nor did

the Academy submit any original or sworn affidavits from these potential witnesses. Similarly,

the Academy did not introduce the original or a certified NCIS Report. Hearsay evidence was

admitted during the Phase I Hearing.

By a vote of 3-to-2, Yu was found guilty of Charges 1, 2, 3, 4, and 6; he was found guilty

of Charge 5 by a vote of 4-to-1. Yu was unanimously found not guilty of Charge 7.

5. The Phase II Executive Board Disciplinary Hearing

During the Phase II Disciplinary Hearing, Plaintiff provided more than eighteen written

statements on his behalf to demonstrate his good character, exceptional performance and

potential for service. He also made an oral statement to the Executive Board, as did his advisor.

In addition, fifteen character witnesses testified on Yu’s behalf; one of Yu’s character witnesses

was his father, who testified, inter alia, that he had never seen his son intoxicated, stating, “we’re

Asian, and so the alcohol does not sit well with us.” (Admin. Record at 1237-38 (Phase II Hr’g

Tr. 238:20-21).)

By a vote of 3-to-2, the Executive Board recommended Yu be retained at the Academy

with sanctions, i.e., he: be set back to the Class of 2020; continue with alcohol counseling; attend

an anger management class; and contribute in some manner to the ”Sea Year” lecture on alcohol

to bring attention to the dangers of drink-spiking overseas (hereafter, the “Recommendation”).

6. Helis’ Decision4

On August 1, 2018, as the Academy’s Superintendent, Helis issued his Decision

regarding the Executive Board’s Recommendation, which stated in relevant part:

Prior to deciding whether the charges against you were proven by a

preponderance of the evidence, the Executive Board fully reviewed

the NCIS Investigatory File . . . which was provided to you at the

time you received the Notice. The Executive Board also

considered your voluntary opening and closing statements (which

you provided orally), your responses to its questions, and the

supplemental documentary evidence you submitted to it. Finally,

the Executive Board considered the testimony of the witnesses

called by the Academy in Phase I . . . . You did not call any

witnesses in Phase [I].

* * *

Prior to its decision as to the appropriate penalty for these

violations, the Executive Board fully reviewed your academic file

and transcript . . . , your personnel jacket . . . , your company file

. . . , your Midshipman Profile . . . , and your Sea Year file . . . , all

of which were provided to you . . . . In addition, the Executive

Board considered additional information you provided during

Phase II of the hearing, including the voluntary statement you

provided . . . , the voluntary statement of your advisor . . . , all the

written character statements you provided, and the oral testimony

of the 15 witnesses you called in Phase II . . . .

The Executive Board recommended that you be retained at the

Academy . . . . * * *

4 (See Admin. Record at 450-458; hereafter, the “Helis Decision”.)

Prior to making my decision in this case, I thoroughly reviewed all

of the evidence made available to the Executive Board, and

listened to portions of the recording of the hearing. The

preponderance of evidence clearly shows that you were very

intoxicated. Bahraini authorities conducted a blood-alcohol test

shortly after the incident at which you were determined to have a

blood-alcohol level of .214. While the NCIS blood-alcohol test

conducted over eleven hours later indicated no alcohol in your

system, the time lapse would account for this. The preponderance

of evidence also clearly shows that, without provocation, you

attacked a man on the street, stole his car and kidnapped his

children who were in the vehicle, drove the vehicle recklessly

while under the influence of alcohol, crashed the vehicle, and

attempted to flee the scene of the accident, leaving the children in

the car. Your actions were dangerous to yourself and others, and

reflect great discredit upon you and the Academy. You also

embarrassed the U.S. Navy and Military Sealift Command (MSC),

as you were on liberty from your assigned MSC vessel at the time

of this incident, and an officer from the vessel had to report to

Bahraini authorities to secure your release from jail.

Your only defense is that you believe you may have unknowingly

consumed a drug in a beer provided you by a woman in a bar

earlier that evening. There is no evidence that supports this claim.

The hair follicle test for the presence of drugs that you presented

only shows the presence of Tramadol, a prescription pain killer.

The test only shows that you took this drug within a 90 day

window. You presented many materials on Gamma-Hydroxy

Butyric acid (GHB), but the test shows only normal levels that

naturally occur within the body. You also presented materials on

Rohypnol, which is a benzodiazepine. The test did not indicate the

presence of benzodiazepine. The Navy drug screen performed

within hours after the incident was also negative for drugs. You

provided NCIS investigators two different versions of when you

might have taken the drug. The two versions involved different

bars, and described different drinks. You were also told by your

father in a text message that you should say you thought you were

drugged. You replied, “I’m sticking with I got drugged.” You

argued that you were drugged by people who wished to do you

harm and rob you, yet there is no evidence of any attempt by

anyone to do so. You claim to have no memory of any of the

events involving the assault, auto theft, kidnapping, reckless

driving, and fleeing the scene of the accident because you were

drugged. If true, this loss of memory is likely to be the result of

your extreme intoxication as shown by the blood-alcohol test

performed by Bahraini officials.

I find that the preponderance of the evidence clearly supports the

charges. I accept the findings of the Executive Board . . . . * * *

Your misconduct is completely unacceptable. The blood-alcohol

test administered by Bahraini officials clearly shows an extreme

level of intoxication on your part. Between Regimental training,

sea year lectures, and being a member of one of the Academy’s

NCAA intercollegiate athletic teams, you have heard on repeated

occasions the importance of being responsible with alcohol

consumption. You failed to conduct yourself responsibly, in [a]

manner consistent with the expectations of a leader of character

preparing himself to serve as an officer in the Merchant Marine

and the Armed Forces. You have brought embarrassment on the

Academy, the Regiment, and yourself, as well as the U.S. Navy,

and raised serious questions as to whether you can be trusted with

the responsibilities of officership.

Accordingly, I have decided to disenroll you from the Academy.

(Helis Decision (emphases added).)

On August 22, 2018, Yu appealed the Helis Decision to the MARAD. On October 2,

2018, Buzby, Administrator of the MARAD, informed Yu that his appeal was denied; he was

given 48 hours to vacate the Academy grounds.

B. Procedural Background

1. Plaintiff’s Complaint

On October 4, 2018, Yu filed his Complaint, raising three causes of action: seeking a

determination that Helis’s Decision was arbitrary and capricious, warranting its being set aside,

and, thereby facilitating Yu’s re-enrollment in the Academy (see Complaint, First Cause of

Action, ¶¶139-145); asserting the Defendants violated Yu’s substantive due process rights by

allegedly violating the “Academy’s own policies, rules and regulations” and improperly

disenrolling him from the Academy, which “was arbitrary and capricious and did not involve the

exercise of proper judgment” and seeking, inter alia, injunctive relief as a result of Defendants’

alleged violation (see Complaint, Second Cause of Action, ¶¶146-154); and, claiming that “[t]he

decisions to find Plaintiff guilty and to disenroll him from the Academy[] were not careful and

deliberate decisions nor were they arrived at in conformance with due process considerations or

supported by the evidence,” thereby constituting a violation of procedural due process, which

entitled him to, inter alia, injunctive relief (see Complaint, Third Cause of Action, ¶¶155-162).

2. The Temporary Restraining Order and Order to Show Cause

When he commenced this action, Yu also filed an application styled as an “Emergency

Motion for Preliminary Injunction.” (See ECF No. 2; hereafter, the “Emergency Motion”.) Of

significance, said filing was not accompanied by the requisite support memorandum (see Oct. 12,

2018 Hr’g Tr.5 23:23-24:17, 25:4-8) but, instead, consisted of a proposed Order to Show Cause

(“OSC”) accompanied by the supporting declaration of Yu’s counsel, Richard Gonzalez (see

Gonzalez Decl. (ECF No. 2 at 3-6)), and ten (10) exhibits. (See id.; see also ECF Nos. 2-2

through 2-11 (exhibits attached to Gonzalez Decl.).) According to Gonzalez, his declaration was

make “in support of the within application in support of Plaintiff’s Order to Show Cause seeking

immediately [sic] reinstatement of plaintiff, ELIAS YU, to the . . . Academy, permitting him to

attend classes, and to participate in the final examinations for the present academic term

concluding on or about October 26, 2018.” (Gonzalez Decl., ¶2; see also Opp’n , ¶12

(“Plaintiff’s OSC request was intended to permit him to complete the present academic term,

which concluded on October 26, 2018.”).) There was no request for further injunctive relief

beyond that timeframe.

5 Hereafter, the Hearing Transcript of the Dissolution Hearing (docketed as ECF No. 30) will be

cited as “Hr’g Tr. [page:line]”.

On October 5, 2018, the Court issued a Temporary Restraining Order & Order to Show

Cause (hereafter, the “TRO”), which ordered, inter alia, that pending a hearing on the

Emergency Motion, the Academy was to reinstate Yu, permitting him to attend classes. (See

ECF No. 5, ¶4.) Further, the Defendants were given “until October 12, 2018 (5:00 p.m. EST) to

file their opposition, if any, to the Emergency Motion,” and directed to “appear on October 18,

2018 . . . to show cause why the Emergency Motion should not be granted.” (Id., ¶¶2, 3.) The

same day, the Defendants filed a response, moving pursuant to Rule 65(b)(4) of the Federal

Rules of Civil Procedure for the dissolution of the TRO (hereafter, the “Dissolution Motion”).

(See ECF No. 6.) The Court scheduled an October 12, 2018 telephonic hearing on the

Dissolution Motion (hereafter, the “Dissolution Hearing”). (See Case Docket, Oct. 9, 2018

(electronic) Notice of Hearing on Motion.)

During the October 12 Dissolution Hearing, the following issues were elucidated. First,

Yu filed his OSC requesting “to remain at the [A]cademy until [October] 26th;” he did not

request “to . . . remain at the [A]cademy past that date.” (Hr’g Tr. 24:22-24; see also id. at

17:21-18:2 (requesting, via his OSC, that Yu be permitted to remain in the Academy for two

weeks to finish classes and sit for exams and “[a[fter that[,] the case will continue before your

Honor”).) Second, as to his Procedural Due Process cause of action raised in his Complaint, Yu

conceded that: the Federal Rules of Evidence were not applicable to the Phase I Hearing (see id.

at 4:3-5); the Academy was not obligated to present live witnesses during the Phase I Hearing

(see id. at 10:9-12); and, the Academy could rely upon hearsay evidence to make its case against

Yu (see id. at 10:24-11:1).6 Yu had no other basis upon which to make a claim of procedural

6 See 2018 Regulations, Ch. 6, § 6.2(1)(b) (“The rules of evidence for judicial proceedings do

not apply” to Phases I and II Disciplinary Hearings.); see also Rev. 2011 Regulations, Ch. 10,

§1001 (same).)

due process violation. (See id. at 11:10-12.) Third, regarding Yu’s claim of a substantive due

process violation, Plaintiff argued that the Superintendent did not properly weigh the evidence

presented to the Executive Board in the Phase II Hearing when he declined to accept the

Executive Board’s recommendation that Yu remain in the Academy subject to conditions (see id.

at 13:15-14:22, 15:1-5). No other grounds were presented to support that cause of action.

The Defendants conceded “there would be no irreparable harm” to them in permitting Yu

to complete the school term, “with or without a TRO . . . [p]rovided come the 26th, Mr. Yu

vacate the campus.” (Id. at 20:16, 18.) Yu agreed “that on the 26th of October and completion

of his exam” he “w[ould] vacate the campus” and “[n]ot return until this matter is resolved in the

court.” (Id. at 20: 22-23, 21:4-5; see also id. at 22:9-16.) Hence, Yu’s Complaint remained

viable (see id. at 21:8 (“The Complaint is not over.”)), with the Court to review the Academy’s

decision, pursuant to the APA.

During the Dissolution Hearing, the Court extended the parties’ submissions deadline to

October 16, 2018, two days before the next scheduled hearing, i.e., October 18, 2018. (See id. at

22:23-25; 23:11-16.) At the next hearing, the parties were to present anything new they wished

the Court to consider in deciding whether Yu should be permitted to be re-enrolled.

3. The Defendants’ Dismissal Motion

On October 16, 2018, the Defendants filed their opposition to the Plaintiff’s application

for an OSC and in support of their Dismissal Motion. Despite repeatedly stating he was not

going to file a memorandum of law in support of his Emergency Motion, Plaintiff did so on

October 23, 2018; said memorandum was also submitted in opposition to the Dismissal Motion.

(See ECF No. 17; see also supra at 2 (defining memorandum as Plaintiff’s “Opposition”).) To

the extent Plaintiff’s memorandum “purport[ed] to be in support of Plaintiff’s Order to Show

Cause,” i.e., the Emergency Motion, the Defendants requested it be stricken. (See ECF No. 18

(Letter Motion to Strike).)

(a.) The Defendants’ Position

The Defendants did not address Plaintiff’s Procedural or Substantive Due Process claims

because they were abandoned by his counsel during the Dissolution Hearing. (See Support

Memo at note 7.) Rather, because it remained unclear whether Yu would be pursuing some type

of preliminary injunction beyond the TRO during the timeframe within which Defendants were

given to file their submission, Defendants structured their arguments in support of their

Dismissal Motion based upon the preliminary injunction standard (see id. at 7-9) and, in the

context of doing so, addressed Yu’s First Cause of Action, i.e., his APA claim for judicial review

of the Defendants’ decision to disenroll him from the Academy (see id. at 9-15).

More particularly, Defendants argued that the Defendants strictly followed Academy

policies and procedures in conducting Yu’s Disciplinary Hearing, first by having an Executive

Board conduct the Phases I and II Disciplinary Hearings, then by said Executive Board making

its recommendation to the Superintendent, and finally by the Superintendent thoroughly

reviewing all of the evidence made available to the Executive Board, but deciding, nonetheless,

to disenroll Plaintiff. (See Support Memo at 11.) They contend that any other allegations that

the Academy failed to follow their “own policies or procedures are simply not rooted in the

actual policies, or constitute Plaintiff’s interpretation of, or disagreement with, the policies.” (Id.

(citing Complaint, ¶¶117-120, 122).)

Moreover, Defendants assert “it is undeniable that[:] the procedures governing discipline

promulgated by the Superintendent are based on the statutory and regulatory commands that

‘[t]he Secretary shall maintain the. . . Academy to provide instruction to individuals to prepare

them for service in the merchant marine of the United States,’ [and] . . the Superintendent has

been ‘delegated authority to issue all regulations necessary for the accomplishment of the

Academy’s mission.’” (Id. at 12-13 (quoting 46 U.S.C. § 51301 and 46 C.F.R. § 310.67,

respectively).) Hence, the Academy’s interpretation and implementation of its policies and

procedures governing Plaintiff’s misconduct and the Academy’s subsequent disciplinary actions

should be accorded deference. (See id. at 13.) Nor was the Helis Decision arbitrary, capricious

or contrary to law, a highly deferential standard of review, since said Decision was based upon,

inter alia, a “thorough[] review[] of all the evidence made available to the Executive Board,” and

Helis’ “listen[ing] to portions of the recording of the hearing.” (Id. (quoting Helis Decision).)

(b.) Yu’s Opposition

Plaintiff acknowledged that “the purpose of the OSC was solely to permit [him] to

complete the . . . academic term, which conclude[d] on October 26, 2018” (Opp’n, ¶28), and that

the “parties’ consent effectively resolved [his] intended relief in his Order to Show Cause” (id. at

¶31). Thus, what remained was “Plaintiff’s Complaint and requested reliefs . . .” (Id. at ¶30

(citing Complaint); see also id. at ¶47 (“Plaintiff did not petition, nor did he intend to obtain, an

injunction to permit him to remain at the Academy past October 26, 2018.”).) Of import,

Plaintiff failed to address Defendants’ note that:

Plaintiff’s counsel abandoned Plaintiff’s Procedural and

Substantive Due Process claims. In addition, Plaintiff’s counsel

abandoned Plaintiff’s contentions that the Academy should have:

1) charged Plaintiff under the Midshipman Regulations

implemented by Superintendent Instruction 2018-7; and 2) applied

the Federal Rules of Evidence to his disciplinary proceeding.

(Support Memo at note 7 (citation omitted); see also id. at 10 (stating that Plaintiff abandoned

his due process claims).) Nor did Plaintiff address any of the Defendants’ APA arguments,

which thoroughly addressed the essence of Yu’s First Cause of Action. Instead, Plaintiff argued

that his “Complaint is not only solid enough to survive pleading challenges, but he should also

be entitled to present evidence to support his claims in his Complaint.” (Opp’n, ¶36.)

4. The October 24, 2018 Hearing

Upon consent, the Court adjourned the October 18, 2018 hearing to October 24, 2018. At

the adjourned hearing, Plaintiff’s counsel confirmed that Yu would be leaving the Academy by

October 26, 2018; therefore, the TRO would no longer be necessary. While counsel also

reiterated that Yu wished to be re-enrolled in the Academy, he did not press for a preliminary

injunction. It was clear Plaintiff sought to accomplish re-enrollment via his First Cause of

Action, the APA judicial review claim. Hence, the parties were given a deadline to submit

additional items necessary to complete the administrative record, upon which—the parties were

advised—the Court’s determination would be based.

III. Discussion

A. The Applicable Law: The APA Standard of Review

Section 706 of the APA, which defines a court’s scope of review, states:

To the extent necessary to decision and when presented, the

reviewing court shall decide all relevant questions of law, interpret

constitutional and statutory provisions, and determine the meaning

or applicability of the terms of an agency action. The reviewing

court shall—

(1) compel agency action unlawfully withheld or

unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and

conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law;

(B) contrary to constitutional right, power,

privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right;

(D) without observance of procedure required by

law;

(E) unsupported by substantial evidence in a case

subject to sections 556 and 557 of this title or

otherwise reviewed on the record of an agency

hearing provided by statute; or

(F) unwarranted by the facts to the extent that the

facts are subject to trial de novo by the reviewing

court.

In making the foregoing determinations, the court shall review the

whole record or those parts of it cited by a party, and due account

shall be taken of the rule of prejudicial error.

5 U.S.C. § 706 (emphasis added). The standard of review under 5 U.S.C. § 706(2)(A) “is highly

deferential and presumes the agency’s action to be valid.” Residents for Sane Trash Sols., Inc. v.

U.S. Army Corps. of Eng’rs, 31 F. Supp.3d 571, 588 (S.D.N.Y. 2014), appeal dismissed, No. 14-

3396 (2d Cir. Oct. 15, 2014); see also Coal. on W. Valley Nuclear Wastes v. Bodman, 625 F.

Supp.2d 109, 116 (W.D.N.Y. 2007), aff’d sub nom Coal. on W. Valley Nuclear Wastes v. Chu,

592 F.3d 306 (2d Cir. 2009) (“An agency’s decision is accorded a presumption of regularity. . .

.” (quotations and citation omitted)). The court “must consider whether the [agency’s] decision

was based on a consideration of the relevant factors and whether there has been a clear error of

judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S. Ct. 814 (1971).

“Although this inquiry into the facts is to be searching and careful, the ultimate standard of

review is a narrow one. The court is not empowered to substitute its judgment for that of the

agency.” Id. at 416; see also Natural Res. Defense Council, Inc. v. F.A.A. (“NRDC”), 564 F.3d

549, 555 (2d Cir. 2009) (holding that under the deferential standard of review set forth in §

706(2)(A), courts “cannot substitute [their] judgment for that of the agency”). “The record must

show that the agency [] examined the relevant data and articulated a satisfactory explanation for

its action[;] . . . [and] the agency’s decision must reveal a rational connection between the facts

found and the choice made.” NRDC, 564 F.3d at 555 (quotations, alterations and citations

omitted); see also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 43, 103 S. Ct. 2856 (1983) (“[T]he agency must examine the relevant data and articulate

a satisfactory explanation for its action including a rational connection between the facts found

and the choice made.” (quotations and citation omitted)). In reviewing the agency’s explanation,

the court “must consider whether the decision was based on a consideration of the relevant

factors and whether there has been a clear error of judgment.” Motor Vehicle Mfrs., 463 U.S. at

43. “If there is sufficient evidence in the record to provide rational support for the choice made

by the agency, [the court] must uphold its decision.” Constitution Pipeline Co. v. N.Y.S. Dep’t of

Envtl. Conservation, 868 F.3d 87, 102 (2d Cir. 2017), cert. denied, 138 S. Ct. 1697, 200 L. Ed.

2d 953 (2018) (quotations and citation omitted).

“Normally, an agency rule would be arbitrary and capricious if the agency has relied on

factors which Congress has not intended it to consider, entirely failed to consider an important

aspect of the problem, offered an explanation for its decision that runs counter to the evidence

before the agency, or is so implausible that it could not be ascribed to a difference in view or the

product of agency expertise.” Motor Vehicle Mfrs., 463 U.S. at 43. Although the reviewing

court “may not supply a reasoned basis for the agency’s action that the agency itself has not

given[,]” the agency’s decision should be upheld, even if it is “of less than ideal clarity,[] if the

agency’s path may reasonably be discerned.” Id. (quotations and citation omitted); accord

F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513-14, 129 S. Ct. 1800 (2009). “[T]he

party challenging the decision has the burden of proof.” Bodman, 625 F. Supp.2d at 116; see

also Miezgiel v. Holder, 33 F. Supp.3d 184, 189 (E.D.N.Y. 2014) (“Plaintiffs bear the burden of

showing, by citation to evidence in the administrative record, that an agency’s actions are

arbitrary and capricious.”).

B. The Present Case

1. Plaintiff’s Second and Third Causes of Action

As an initial matter and as is evident from the Dissolution Hearing, Plaintiff has

abandoned his Second and Third Causes of Action, i.e., his Substantive Due Process and

Procedural Due Process claims. (See {CITE}.) Even if that were not so, those claims would be

deemed waived as Plaintiff failed to oppose the Defendants’ assertion that said claims have been

abandoned. See, e.g., Wilkov v. Ameriprise Fin. Servs., Inc., 753 F. App’x 44 (2d Cir.

2018)(“We affirm the District Court’s dismissal of those claims on the ground that they were

‘abandoned” by [plaintiff] when she failed to oppose them in her opposition to [defendant’s]

motion to dismiss.”); Doe v. Haas, No. 19-cv-014, 2019 WL 6699910, *6 n.3 (E.D.N.Y. Dec. 9,

2019) (noting that where plaintiff did not address a claim in his opposition to a dismissal motion,

said claim is abandoned); Black Lives Matter v. Town of Clarkstown, 354 F. Supp.3d 313, 328

(S.D.N.Y. 2018)(finding the failure to oppose a motion to dismiss a claim is deemed

abandonment of that claim)(collecting cases). Hence, the Court need not address Plaintiff’s due

process claims. What remains, therefore, is Yu’s First Cause of Action, which is his request for

judicial review of the Helis Decision pursuant to the APA (see Dismissal Motion at 9 (stating

Plaintiff seeks review of the Helis Decision pursuant to § 706(2)(A) of the APA); see also Letter

Motion to Strike at 2 (“Plaintiff’s only remaining claim, consist[s] of his request for judicial

review of Defendants’ decision to disenroll him from the . . . Academy . . . .”), which the

Plaintiff does not dispute.

2. Plaintiff’s First Cause of Action (the “APA Claim”)

The Court’s determination of Plaintiff’s APA claim is limited to the Administrative

Record, which has been submitted to the Court.7 See Kappos v. Hyatt, 566 U.S 431, 438, 132 S.

Ct. 1690, 1696 (2012)(“Under the APA, judicial review of an agency decision is typically

limited to the administrative record.” (citing 5 U.S.C. § 706)); Riverkeeper, Inc. v. EPA, 358 F.3d

174, 184 (2d Cir. 2004)(“Review under [5 U.S.C. § 706] is narrow, limited to examining the

administrative record to determine whether the agency decision was based on a consideration of

the relevant factors and whether there has been a clear error of judgment.” (alternation and

internal quotation marks omitted)). Therefore, contrary to his assertion and regardless how

“solid” he believes his pleadings to be (see Opp’n, ¶36), Plaintiff is not entitled to present other

evidence in support of his APA claim. See Camp v. Pitts, 411 U.S. 138, 142 (1973)((“[T]he

focal point for judicial review should be the administrative record and not some new record

made initially in the reviewing court.”).

Turning to the applicable APA review standard, then-District Court Judge Bianco has

already found that these Defendants “are entitled to deference with regard to their policies, which

were enacted in accordance with 46 U.S.C. § 51318 and other regulatory authority governing the

Academy’s operations.” Doe, 307 F. Supp.3d at 144 (denying preliminary injunction because

plaintiff had no likelihood of success on his APA claim that Academy “failed to follow its own

7 To the extent the Plaintiff argues that in deciding a Rule 12(b)(6) motion, the Court’s

consideration is limited to, inter alia, “documents attached to the complaint as an exhibit or

incorporated by reference” (Opp’n, ¶42 (citation omitted)), in this instance, the Administrative

Record is deemed incorporated by reference especially in light of Plaintiff’s request for an APA

judicial review of the Helis Decision as articulated in his First Cause of Action. See also

generally Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (“[I]n some cases, a document

not expressly incorporated by reference in the complaint is nevertheless ‘integral’ to the

complaint and, accordingly, a fair object of consideration on a motion to dismiss.”).

rules, policies, procedures and regulations” (internal quotation marks and citation omitted)).

Upon the Administrative Record presented, there is no basis to conclude otherwise in this

instance. Indeed, there is no dispute here that pursuant to statutory authority, “[t]he immediate

command of the . . . Academy shall be in the Superintendent of the Academy, subject to the

direction of the Maritime Administrator under the general supervision of the Secretary of

Transportation,” 46 U.S.C. § 51301(c)(1), or that “[t]he Superintendent of the Academy is

delegated authority to issue all regulations necessary for the accomplishment of the Academy’s

mission.” 46 C.F.R. § 310.67. Accordingly, Helis issued “Superintendent Instruction 2018-07”,

regarding the “Midshipman Regulations 2018” (hereafter, the “2018 Regulations”), “[t]o

authorize and promulgate revisions to the Midshipman Regulations.” (Superintendent

Instruction 2018-07 (dated June 27, 2018), § 1, attached as Ex. F (ECF No. 2-7) to Gonzalez

Decl.; see also 2018 Regulations, Ch. 1, §1.1(3) (“The Academy is required by the U.S.

Department of Transportation, Maritime Administration, as directed by the Merchant Marine

Education and Training Act of 1980[,] to have formal rules governing the operation of the

Regiment. These Midshipman Regulations fulfills this requirement.”), attached as Ex. F (ECF

No. 2-7) to Gonzalez Decl.; cf., Midshipman Regulations 2011, § 101(a) (“Purpose. The purpose

of these regulations is to establish Academy policy governing the obligations, standards, and

responsibilities of Midshipmen.”), attached as Ex. E (ECF No. 2-6) to Gonzalez Decl. 8)

To the extent Yu contends that the Helis Decision is arbitrary and capricious because Yu

was brought up on charges pursuant to the 2011 Regulations notwithstanding its replacement

with the 2018 Regulations, pursuant to which the Phases I and II Disciplinary Hearings were

8 While, for convenience, the Court cites to the exhibits attached to the Gonzalez Declaration

submitted in support of the Emergency Motion, the 2018 Regulations and 2011 Regulations are,

nonetheless, part of the Administrative Record.

conducted, the Court finds that contention unpersuasive. The Academy’s decision to charge Yu

with misconduct pursuant to the 2011 Regulations, but conduct his Disciplinary Hearings

pursuant to the 2018 Regulations was, essentially, its interpretation of its own regulations, which

is entitled to substantial deference if not manifestly unreasonable. See, e.g., Lyng v. Payne, 476

U.S. 926, 939 (1986), United States v. Larinoff, 431 U.S. 864, 872 (1977). This comports with

the long-held view that

[f]ew decisions properly rest so exclusively within the discretion of

the appropriate government officials than the selection, training,

discipline and dismissal of the future officers of the military and

Merchant Marine. Instilling and maintaining discipline and morale

is these young [people] who will be required to bear weighty

responsibility in the face of adversity—at times extreme—is a

matter of substantial national importance scarcely within the

competence of the judiciary.

Wasson v. Trowbridge, 382 F.2d 807, 812 (2d Cir. 1967)(addressing due process to

which a cadet is entitled when subject to expulsion from the Academy). The Academy’s

decision to proceed in the manner it did is entitled to substantial deference because it was

reasonable.

As Plaintiff himself alleged, the Academy put him on notice that it would be doing so, to

wit:

On 27 June 2018, the Superintendent promulgated revised

Midshipman Regulations via Superintendent Instructions (SI)

2018-07. The Executive Board will follow the procedures set forth

in Chapter 6 of SI 2018-07 [i.e., the 2018 Regulations]. Since the

alleged misconduct with which you are charged occurred when the

previous Midshipman Regulations were in effect, the charges

reference the sections from those 2011 Midshipman Regulations.

(Complaint, ¶78 (quoting Final Hearing Notice, note 1 (emphasis added)(further indicating that

“[c]opies of the current Regulations, the 2011 Midshipman Regulations, and SI 2016-04,

USMMA Sea Year Conduct Policy” where attached to Notice).) Nothing in the Administrative

Record demonstrates that, prior to the Disciplinary Hearings commencing, Yu objected to the

Academy proceeding in this manner. (See, e.g., Phase I Hr’g Tr., Admin. Record at 1000-15.)

Nor is there any basis to find that the 2018 Regulations were intended to be applied retroactively.

Rather, charging Yu with violations pursuant to the 2011 Regulations is consistent with

American anti-retroactivity jurisprudence. See generally Langraf v. USI Film Prods., 511 U.S.

244, 265-66 (1994) (“[T]he presumption against retroactive legislation is deeply rooted in our

jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary

considerations of fairness dictate that individuals should have an opportunity to know what the

law is and to conform their conduct accordingly; settled expectations should not be lightly

disrupted. For that reason, the principle that the legal effect of conduct should ordinarily be

assessed under the law that existed when the conduct took place has timeless and universal

appeal.” (internal quotation marks and citation omitted)); see also generally City of New York v.

Permanent Mission of India to United Nations, 618 F.3d 172, 192-93 (2d Cir. 2010)(recognizing

that presumption against retroactivity applies to rulemaking by executive agencies and

departments). The Academy’s rational for pressing misconduct charges as defined in the 2011

Regulations logically comports with this anti-retroactivity principle since Yu’s misconduct

occurred when the 2011 Regulations were still in effect and the 2018 Regulations did not yet

exist. Thus, there was nothing arbitrary, capricious, abusive of discretion, or otherwise not in

accordance with the law for the “Executive Board . . . [to have] charged/tried Plaintiff for

violating section[s] of the 2011 Midshipman Regulations that no longer exist[ed]” (Complaint,

¶121) when the Phases I and II Disciplinary Hearings were conducted. Relatedly, the

presumption against retroactivity generally does not attach to changes in procedural rules. See,

e.g., Landgraf, 511 U.S. at 275; see also Ahmad v. Morgan Stanley & Co., Inc., 2 F. Supp.3d

491, 496-97 (S.D.N.Y. 2014)(stating, as an example, that “a provision granting the right to a jury

trial under a certain cause of action ‘is plainly a procedural change of the sort that would

ordinarily govern in trials conducted after its effective date’” (quoting Landgraf, 511 U.S. at

280)). Since the Phases I and II Disciplinary Hearings were held when the 2018 Regulations

were in effect, it was rational for the Academy to conduct them in accordance with those

Regulations, as the manner in which the Hearings were conducted was procedural in nature. See

generally, e.g., Ahmad, 2 F. Supp.3d at 498 (finding that presumption against retroactivity need

not apply to all provisions of an act, such as procedural provisions (citing Landgraf, 511 U.S. at

280)). Moreover, Yu was provided fair notice that this was the manner in which the Hearings

would proceed.

The Administrative Record establishes that the Academy conducted the Disciplinary

Hearings in conformity with the applicable Regulations 9 (see 2018 Regulations, Ch. 6, §6.5):

the Executive Board was convened at the Superintendent’s directive (see Admin. Record at 539)

to consider all the evidence presented, including the offered testimony of witnesses, to determine

whether, by a preponderance of the evidence, Yu was guilty of the seven misconduct charges

levied against him; upon the Executive Board’s findings that Yu was guilty of six of the

misconduct charges, the necessary Phase II Hearing was conducted with Yu presenting evidence

in an effort to “demonstrate[e] sufficient cause for [his] retention by a preponderance of the

evidence” (2018 Regulations, Ch. 6, § 6.5(6)(a)); after deliberation, the Executive Board issued

its recommendation to the Superintendent for his consideration; and, after considering of the

Executive Board’s recommendation, as well as “thoroughly review[ing] all of the evidence made

9 The Court notes that the procedures for Executive Board disciplinary hearings outlined in the

2011 Regulations are substantially the same as those stated in the 2018 Regulations. (Cf.,

Admin. Record at 526-37.)

available to the Executive Board, and listen[ing] to portions of the recording of the hearing, the

Superintendent accepted the Executive Board’s recommendations of guilt on the six misconduct

charges and non-guilt on one misconduct charge, but rejected its recommendation that Yu be

retained, albeit with a one-year set-back and other conditions. As the Defendants aptly state,

“Nothing in the Academy’s policies and procedures mandates that the Superintendent must

accept and adopt the E[xecutive ]Board’s recommendation as to a disciplinary penalty.”

(Support Memo at 11 (citing Doe, 307 F. Supp.3d at 129 n.5 (“In Executive Board Hearings, the

Executive Board send its recommendations to the Superintendent, who reviews the

recommended penalty and issues a final decision.”)).) Nor has Yu pointed the Court to such

authority. Moreover, the Superintendent thoroughly articulated his reasons, supported by the

evidentiary record, for not accepting the Executive Board’s penal recommendations, e.g.: despite

repeated instructions from the Academy regarding the importance of responsible alcohol

consumption,10 the evidence of Yu’s extreme intoxication, which was the likely reason for any of

Yu’s alleged memory loss; that while intoxicated: Yu assaulted a man without provocation, stole

his car, kidnapped his two young children (seated in the car), drove and crashed the car, and then

fled the scene of the crash; finding unsupported by evidence Yu’s theory that he “may have

unknowingly consumed” a “date rape” drug placed in a beer provided to him earlier in the

10 During the Phase II Disciplinary Hearing, Yu called several classmates who testified that

during one of a series of “Sea Year” program-related lectures, no specific cautions against the

dangers of “spiked” drinks were delivered. (See Admin. Record at 1211 (testimony of Midn.

Abbott), 1213 (testimony of Midn. Cannell), 1215 (testimony of Midn. Blauw), 1217-18

(testimony of Midn. Irizarry), and 1220 (testimony of Midn. Goretoy).) However, Yu did not

offer any other evidence calling into question Helis’ statement that Yu was instructed on “the

importance of being responsible with alcohol consumption” on other occasions, as well. (Helis

Decision (“Between Regimental training, sea year lectures, and being a member of one of the

Academy’s NCAA intercollegiate athletic teams, you have heard on repeated occasions the

importance of being responsible with alcohol consumption.” (emphasis added)).)

evening, especially since Yu provided “two different versions of when [he] might have taken the

drug” and received a text message instruction from his father advising Yu to say he thought he

was drugged. (Helis Decision, supra at pp. 8-10.) The Court cannot say that based upon the

consideration of the relevant factors, it was a clear error of judgment for the Superintendent to

conclude that Yu’s “actions were dangerous to [him]self and others, and reflect[ed] great

discredit upon [Yu] and the Academy,” and “brought embarrassment on the Academy, the

Regiment, and [Yu], as well as the U.S. Navy” (Helis Decision , supra at p.10), thereby

warranting the decision to disenroll him. Rather, because the Court is satisfied from its

searching and careful review of the Administrative Record that there was sufficient evidence

which rationally supports the Superintendent’s choice of not accepting the Executive Board’s

penal recommendations but, instead, disenrolling Yu, the Helis Decision must be upheld. See

Constitution Pipeline Co. v. N.Y.S. Dep’t of Envtl. Conservation, 868 F.3d 87, 102 (2d Cir. 2017)

(quotations and citation omitted)., cert. denied, 138 S. Ct. 1697 (2018); see also Alvarez Sosa v.

Barr, 369 F. Supp.3d 492, 500 (E.D.N.Y. 2019)(quoting Constitution Pipeline).

Finally, to the extent Plaintiff attempts to incorporate a Fifth Amendment due process

claim in his First Cause of Action (see Complaint, ¶143), that claim is rejected. Yu’s being

charged with misconduct pursuant to the 2011 Regulations, but having his Disciplinary Hearings

conducted pursuant to procedures outlined in the 2018 Regulations comports with what the

Second Circuit has found to constitute a fair hearing for a midshipman subject to disenrollment

from the Academy, i.e.: “The Cadet[11] must be apprised of the specific charges against him. He

must be given an adequate opportunity to present his defense both from the point of view of time

11 “Cadet” is synonymous with “Midshipman”. (See, e.g., 2018 Regulations, Ch.6, §6.1(1), n.2.)

and the use of witnesses and other evidence. * * * The hearing may be procedurally informal

and need not be adversarial.” Wasson, 382 F.2d at 812; cf., 2018 Regulations, Ch. 6, §

6.2(1)(a)(“The Executive Board hearings are conducted in an informal, non-adversarial manner.

The Executive Board is a fact-finding body charged with presenting a recommendation to the

Superintendent.”). Review of the Administrative Record confirms that the Disciplinary Hearings

afforded Yu “the rudiments of a fair hearing,” Wasson, 382 F.2d at 812, since three separate

hearing notices informed Yu (1) of the specific charges against him, and (2) that, while he was

“not required to provide evidence, make a statement, or answer questions,” the charges against

him would “be considered based on the evidence, statements, and/or information presented at the

hearing” including “consider[ing] all documentary evidence and witness testimony provided by

[Yu], as well as the testimony provided by all other witnesses” (First Notice (ECF No. 2-3); see

also Second Notice (ECF No. 2-4), and Final Notice (ECF No. 2-5)); and at least one

adjournment of the Phase I Disciplinary Hearing occurred at Yu’s request to allow him to

prepare for that Hearing (see Complaint, ¶¶56-62). Moreover, as Plaintiff alleged, the Academy

informed him that he “would be permitted to call the witnesses he wished at the hearing.” (Id.,

¶68; see also id. at ¶82 (“On July 23, 2018, Plaintiff submitted a ‘Supplemental – Witness and

Evidence List’[] for use at the Executive Board hearing.”).) While “Plaintiff introduced multiple

exhibits” (id. at ¶103), he did not call any witnesses during Phase I.12 Yet, all that was required

was the fair opportunity to do so, which the Administrative Record demonstrates was provided.

In sum, Yu has not overcome the presumption of regularity afforded to the Academy regarding

the manner in which it conducted Phases I and II of Yu’s Disciplinary Hearings.

12 As the Administrative Record shows, Yu presented evidence and witnesses during Phase II of

the Disciplinary Hearing.

* * *

The Court has considered Plaintiff’s remaining arguments in opposition to the Dismissal

Motion and find them to be without merit.

IV. Conclusion

Upon a thorough, probing, in-depth review of the Administrative Record, the Court finds

the Helis Decision was based upon consideration of the relevant facts and articulated a

satisfactory explanation for the Superintendent’s disenrollment decision. Given the rational

connection between the facts found and the choice made, no clear error of judgment in the Helis

Decision lies, warranting it being upheld. Accordingly, IT IS HEREBY ORDERED that the

Defendants’ Dismissal Motion is GRANTED; Plaintiff’s Complaint is dismissed in its entirety.

The Clerk of Court is directed to close this case.

For completeness, the Defendants’ Letter Motion to Strike (ECF No. 18) is terminated as

moot since the Court finds the Opposition did not support Plaintiff’s Emergency Motion/OSC.

The March 2, 2020 Status Conference is marked off the Court’s calendar.

SO ORDERED this 25th day of February 2020 at Central Islip, New York.

Sandra J. Feuerstein

/s/

Sandra J. Feuerstein

United States District Judge