Barber v. United States of America

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

X

N. B.,

MEMORANDUM AND

Plaintiff, ORDER

21-cv-1664 (GRB)(SIL)

-against-

UNITED STATES OF AMERICA, UNITED

STATES DEPARTMENT OF

TRANSPORTATION, UNITED STATES

MERCHANT MARINE ACADEMY, JOHN

DOES 1-10,

Defendants.

X

GARY R. BROWN, United States District Judge:

“Few 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 in these young men 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)

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.

BACKGROUND

A. Procedural History

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

1 On March 29, 2021, this case was assigned to the late Judge Sandra J. Feuerstein. This case was reassigned to the

undersigned on April 12, 2021.

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.

B. Facts

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

2 While in deferred graduate status, plaintiff “[was] permitted to participate in graduation exercises [on June 19,

2021], but will not receive [his] diploma and U.S. Coast Guard License, and will not be permitted to take the[]

officer’s oath into the armed services.” DE 19 (quoting SI 2020-02 ¶ 5(b)).

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 bunkbed 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 believed the sex was

consensual even though complainant said “no” and had not consented to role-playing:

Deputy Superintendent: She said the word N-O?

Plaintiff: Yes, ma’am.

Deputy Superintendent: Okay. And then you went on and you say it was a kinky

sexual kind of playfulness about it, like it’s dirty to do that with her. … Did you

agree on any sort of role playing?

Plaintiff: During the event, we didn’t say specifically that we were going to role

play[.]”

…

Deputy Superintendent: So, what – so you’re saying [is] that you, even though she

said no, you thought it was consensual?

Plaintiff: Yes, ma’am.

AR 594-96.

After that night, plaintiff “heavily” questioned himself whether complainant wanted to

have sex with him. AR 139. In his statement to the Board, plaintiff acknowledged, “The way I

am explaining it, it does sound weird and when I say if any other girl would have said no I would

have stopped immediately. My initial reaction was that she was being playful. I can’t say

specifically that we were role playing, we didn’t consent to that was a role playing situation.” AR

139. Although plaintiff felt upset and thought he should have clarified the situation, plaintiff

believed his assumptions were correct after complainant began visiting his room. AR 139. The

next day, for instance, complainant texted plaintiff to ask if she could store leftovers in his

refrigerator. AR 259-62. Eight days later, complainant texted plaintiff that she was not pregnant

and “you can wake me up if you bring me a drink.” AR 279.

According to plaintiff, complainant reversed the order of the third and fourth encounters.

AR 645. In his account, he and complainant had sexual intercourse on the chair in his room on

December 9, 2018. AR 263, 652. The last sexual encounter, which involved oral sex, took place

a week later on December 16, 2018. AR 280. That night, plaintiff invited complainant over to his

room for a drink. AR 367. According to plaintiff, complainant said she wanted to show him her

new oral sex skills. AR 136. Plaintiff laid down in bed and she crawled in with him. AR 136.

Complainant then tied her hair into a ponytail, climbed on top of plaintiff, and performed oral sex.

AR 369. Plaintiff said in his statement that this last sexual encounter was the only time it was

“fully consensual” and there was no role playing. AR 141. The midshipman who walked in on

complainant performing oral sex also witnessed complainant on top of plaintiff. However, he did

not “particularly remember” the incident because he was drunk. AR 123, 564. The following day,

complainant texted plaintiff that she “really like[s] forehead kisses” and sent him photos of them

together at Winter Ball. AR 283, 286.

For over a year and a half, complainant did not formally accuse plaintiff of sexual assault.

Although complainant knew these sexual encounters were not consensual, complainant did not

call it rape because “it felt harsh.” AR 30. Complainant did not consider these incidents rape until

mid- to late 2019. AR 30, 39. In a message with plaintiff over social media, she accused him of

sexual assault, which plaintiff found extremely upsetting. AR 142. Nonetheless, on April 7, 2020

complainant wrote to her boyfriend that, “I never felt like I was raped.” AR 109. She told him, “I

felt like I had cheated on you and I deserved all your hatred for it.” AR 109. On June 29, 2020,

complainant filed a restricted report against plaintiff with the Academy and then unrestricted the

report on October 5, 2020, thereby allowing an investigation to begin. AR 19, 134.

In October 2020, the Public Safety Officer (the “Safety Officer”) interviewed six

midshipmen, including plaintiff and the complainant, about the alleged sexual assaults. On

November 6, 2020, the Safety Officer submitted his investigation file to the Deputy

Superintendent. AR 19. On November 17, 2020, the Deputy Superintendent notified plaintiff that

he was charged with violating SI 2018-04 and Midshipman Regulations Chapter 3.12 for allegedly

sexually assaulting the complainant. AR 1, 307. SI 2018-04 prohibits the “intentional touching

of a sexual nature … without the consent of another person.” AR 948. The notice of hearing

named the three officers presiding over the Executive Board Disciplinary Hearing and the four

witnesses the Academy intended to call at the hearing. AR 1-2. The Safety Officer was not one

of the three officers on the Board. The notice, which plaintiff signed, advised him of his rights:

1) “To receive a copy of the investigatory file;”

2) “To seek the advice and assistance of legal counsel … [who] may be present at the

hearing to consult and advise you, but may not otherwise participate;”

3) “To challenge the impartiality of any of the hearing officers;”

4) “To remain silent through the hearing;”

5) “To be present during the entire hearing;”

6) “To make opening and closing statements;”

7) “To present evidence including but not limited to documentary evidence and the

testimony of reasonably available witnesses;”

8) “To question all witnesses,” except complainant whom the plaintiff may question by

submitting questions the Board will review and ask;

9) “To receive, upon request, a copy of the recording of the hearing;” and

10) “To appeal a decision of disenrollment.”

AR 2-4.

Attached to the notice was a copy of the Executive Board’s Standard Operating Procedure

(SOP) for sexual assault hearings, which states, “Executive Board Disciplinary Hearings are

conducted in an informal, non-adversarial manner” and “[t]he rules of evidence for judicial

proceedings do not apply ….” AR 4, 6. In addition, the SOP provides that a hearing officer must

have received annual training on the adjudication of sexual misconduct cases and be trained in

seven subject areas. AR 6. Finally, the Academy also provided plaintiff the full investigatory file

compiled by the Safety Officer. AR 307. Before the hearing, plaintiff submitted to the Board over

100 pages of supposedly exculpatory text messages between himself and complainant. AR 197-

306.

On November 30, 2020, the Board held the hearing via Zoom. AR 339. The Board listened

to six witnesses, two of whom were called by the plaintiff. AR 307. Plaintiff’s faculty advisor

was present during the entirety of the hearing. AR 307. Plaintiff had an opportunity to question

each of the witnesses called by the Academy, and gave an opening and closing statement. AR

357-79. Following the plaintiff’s opening statement, the Board called the Safety Officer to provide

an executive summary of his investigation. AR 379-92.

Per the Academy’s SOP, the investigator is to provide a “brief statement” summarizing the

investigation. AR 14. Before summarizing the three alleged sexual assaults, the Safety Officer

testified that “hormones … released in a traumatic event can interfere with the victim’s ability to

gather, organize and consolidate memories.” AR 383. He listed the side effects of PTSD and

commented that complainant has “related or displayed almost all of these effects of being sexually

assaulted.” AR 384. When asked by the Deputy Superintendent, the Safety Officer confirmed

that the complainant displayed the characteristics of a sexual assault victim. AR 392-93. When

plaintiff asked the Safety Officer whether it is “normal” for a sexual assault to occur when the

victim climbs up a ladder into bed, he replied, “In my experience, a sexually assaulted victim,

number one, doesn’t remember everything about the encounter and, number two, … they become

very submissive … because of these hormones that are released.” AR 401-02. Plaintiff did not

object to the Safety Officer’s testimony.

During plaintiff’s questioning, the Safety Officer stated that he read “some” of the text

messages plaintiff submitted. AR 398. Complainant testified that plaintiff misrepresented their

conversations by cherry-picking texts, while plaintiff maintained that he omitted only irrelevant

text messages. AR 487, 630.

At the end of Phase I, the determination phase, the Board deliberated and unanimously

found by a preponderance of the evidence that plaintiff violated SI 2018-04 and Midshipman

Regulations Chapter 3.12 by sexually assaulting the complainant. AR 307, 673-74. In Phase II,

the sanction phase, plaintiff called three character witnesses and made a statement in his defense.

AR 675-707. After deliberating, the Board announced that plaintiff should be disenrolled. AR

707.

On December 8, 2020, the Board summarized its findings in a recommendation to the

Superintendent. AR 307. In its recommendation, the Board determined by a preponderance of the

evidence that plaintiff sexually assaulted complainant based upon, inter alia, plaintiff’s admission

that complainant told him “no, I have a boyfriend, we shouldn’t do this,” plaintiff’s admission that

he did not believe complainant meant “no,” plaintiff’s admission that “if any other girl would have

said no I would have stopped immediately,” and plaintiff’s admission that he did not obtain consent

for a sexual role-playing experience and interpreted her protests as role-playing. AR 308.

In its recommendation, the Board considered plaintiff’s defenses that complainant told him

to lock the door before they had sex, that she subsequently sought him out in his room, and said

she wanted to show him her new oral sex tricks. AR 309. The Board discounted plaintiff’s

testimony because of his own admission that she said “no” before they had sex and that he heavily

questioned himself after their first encounter. The Board also discounted the text messages

plaintiff submitted because complainant testified that plaintiff had excluded text messages where

she protested against his unwanted sexual advances. AR 309. Indeed, plaintiff only presented 12

days out of 55 days of text messages. AR 309. The Board noted the Safety Officer’s testimony

that complainant displayed characteristics of a sexual assault victim such as “anger, confusion, and

inability to maintain eye contact.” It also noted two other witnesses’ testimony that after December

2018 complainant’s affect changed, from that of a “social butterfly” to seemingly depressed. AR

309. The Board believed that plaintiff’s actions rendered his Academy career unrecoverable and

doubted his ability to perform as a mariner because of issues of trustworthiness. AR 310. Thus,

the Board recommended disenrollment because plaintiff’s behavior revealed he lacks the

characteristics of an exemplary leader. AR 310.

STANDARD OF REIVEW

A party seeking preliminary injunctive relief must demonstrate “(1) irreparable harm

absent injunctive relief; (2) either a likelihood of success on the merits, or a serious question going

to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in

the plaintiff’s favor; and (3) that the public’s interest weighs in favor of granting an injunction.”

Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir. 2011) (citation omitted). In addition,

where the preliminary injunction will affect governmental action “taken in the public interest

pursuant to a statutory or regulatory scheme, the injunction should be granted only if the moving

party meets the more rigorous likelihood-of-success standard.” Doe v. United States Merch.

Marine Acad., 307 F. Supp. 3d 121, 143 (E.D.N.Y. 2018) (citing Sussman v. Crawford, 488 F.3d

136, 140 (2d Cir. 2007) (citations omitted)). Further, if the party seeks a “mandatory injunction”

altering the status quo, then the party must make a “‘clear’ or ‘substantial’ showing of a likelihood

of success on the merits.’” Doe, 307 F. Supp. at 143 (citing Jolly v. Coughlin, 76 F.3d 468, 473

(2d Cir. 1996)). The Court has “wide discretion in determining whether to grant a preliminary

injunction,” as it is “one of the most drastic tools in the arsenal of judicial remedies.” Grand River

Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (citations omitted).

DISCUSSION

A. Consolidation with a Determination on the Merits

Plaintiff requests to consolidate the motion for a preliminary injunction with a “trial on the

merits” pursuant to Rule 65 of the Federal Rules of Civil Procedure. DE 12 at 5. Rule 65(a)(2) of

the Federal Rules of Civil Procedure provides that “[b]efore or after beginning the hearing on a

motion for a preliminary injunction, the court may advance the trial on the merits and consolidate

it with the hearing.” When consolidating a motion for a preliminary injunction with a trial on the

merits, “the court must preserve any party’s right to a jury trial.” Fed. R. Civ. P. 65(a)(2). There

is no right to trial by jury for APA claims, which are equitable in nature. 5 U.S.C. § 702 (“A

person suffering legal wrong because of agency action … is entitled to judicial review thereof”)

(emphasis added); Cox v. United States, 332 U.S. 442, 453 (1947) (“[T]he constitutional right to

jury trial does not include the right to have a jury pass on the validity of an administrative order.”).

Under Rule 65(a)(2), a matter may be consolidated where the parties are permitted to present all

material evidence. Abraham Zion Corp. v. Lebow, 761 F.2d 93, 101 (2d Cir. 1985). Since the full

record is before the Court, a separate trial on the merits would be a waste of time and resources.

Moreover, the government has not objected to plaintiff’s request to consolidate the motion for a

preliminary injunction with a trial on the merits. DE 17 at 1; DE 18 at 1. As such, the Court

exercises its discretion to consolidate the merits of this case with the preliminary injunction

determination herein.

B. Irreparable Harm

“A showing of irreparable harm is ‘the single most important prerequisite for the issuance

of a preliminary injunction.’” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118

(2d Cir. 2009) (citation omitted). “[T]he alleged injury must be one incapable of being fully

remedied by monetary damages.” Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907 (2d

Cir. 1990). The irreparable harm must be actual and imminent, not remote or speculative, and

must establish that such harm is likely in the absence of an injunction. Id. Additionally, the

moving party should act diligently to enforce their rights because delay may “indicate an absence

of the kind of irreparable harm required to support a preliminary injunction.” Costello v.

McEnergy, 767 F. Supp. 72, 78 (S.D.N.Y. 1991) (quoting Citibank, N.A. v. Citytrust, 756 F.2d

273, 276 (2d Cir. 1985)).

Plaintiff has shown he will suffer irreparable harm if not granted injunctive relief. Absent

injunctive relief, plaintiff will not receive his diploma or U.S. Coast Guard License and will not

be permitted to take the officer’s oath into the armed services. DE 19. Without question, this is a

serious matter. Courts in this circuit have previously held that a disruption of one’s education

constitutes irreparable harm. See, e.g., Doe v. Univ. of Connecticut, No. 3:20-CV-92 (MPS), 2020

WL 406356, at *2 (D. Conn. Jan. 23, 2020) (“[A] two-year suspension and a sanction for sexual

assault would indeed ‘forever change[ ]’ the trajectory of [plaintiff’s] education and career”

because “he would need to explain a gap on his résumé”); see also Doe v. Rensselaer Polytechnic

Inst., No. 1:20-CV-01359 (BKS)(CFH), 2020 WL 6544607, at *6 (N.D.N.Y. Nov. 6, 2020) (losing

coursework completed prior to plaintiff’s mid-semester suspension is sufficient to show irreparable

harm). Monetary relief cannot compensate plaintiff for loss of his college diploma or fill the

resulting gap in his education.3 Plaintiff diligently sought injunctive relief in this Court just twelve

days after the Acting Maritime Administrator dismissed his appeal. DE 1. Although the

government claims plaintiff failed to demonstrate an urgency to return to school because he missed

make-up classes, DE 17 at 31, following this Court’s TRO, plaintiff completed all second trimester

exams and attended his third trimester classes. DE 12-1, ¶¶ 5-6. For these reasons, plaintiff

satisfies the irreparable harm prong for injunctive relief.

C. Likelihood of Success

1. Administrative Procedure Act

Plaintiff challenges the Superintendent’s decision under the Administrative Procedure Act,

5 U.S.C. § 701 et seq. The APA applies because defendants are agents under 5 U.S.C. § 701, see

Doe, 307 F. Supp. 3d at 143, and agency action is subject to judicial review when it is “final” and

there is “no other adequate remedy in a court.” 5 U.S.C. § 704. The Board’s decision is final

because the Superintendent adopted the Board’s recommendation and the Acting Maritime

Administrator denied plaintiff’s appeal. AR 312-13, 946; see SOP “15. Right to Appeal” (“Unless

the Superintendent or Maritime Administrator sends the matter back to the hearing officer(s) for

further proceedings, the decision of the Superintendent or Maritime Administrator is final and the

matter is closed.”). The APA provides that “‘[a] person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency action within the meaning of a relevant

statute, is entitled to judicial review thereof,’ unless review is precluded by statute or the

complained-of decision was committed to agency discretion.” Ruiz v. Mukasey, 552 F.3d 269, 273

(2d Cir. 2009) (quoting 5 U.S.C. § 702).

3 Phillips v. Marsh, 687 F.2d 620, 622 (2d Cir. 1982) (interruption of academic work may create irreparable harm

because the loss of time, military seniority, education and status resulting from dismissal cannot be adequately

compensated at law) (citing Doe v. New York University, 666 F.2d 761, 773 (2d Cir. 1981)).

Under the APA, a reviewing court shall “hold unlawful and set aside agency action,

findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with the law.” 5 U.S.C. § 706(2)(A). An agency action is arbitrary and

capricious where “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. Ass’n

of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Additionally, an agency

action may be arbitrary and capricious if they fail to follow their own procedures and regulations.

See, e.g., Lightsey v. King, 567 F. Supp. 645, 649-50 (E.D.N.Y. 1983) (Academy’s refusal to

reestablish exam grade after the Honor Board exonerated midshipman of cheating was arbitrary

and capricious). “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) (quotation marks and citation

omitted); see also Doe v. United States Merch. Marine Acad., 307 F. Supp. 3d 121, 128, 143-44,

147 (E.D.N.Y. 2018) (explaining standard of review under the APA). Importantly, then, it is not

this Court’s role to examine the evidence de novo and draw its own conclusions. The question is,

rather, on this record, whether the Superintendent’s decision was rationally supported by the

evidence.

Plaintiff argues the Superintendent’s determination that he violated SI 2018-04 and

Midshipman Regulations Chapter 3.12 by sexually assaulting the complainant was arbitrary and

capricious. DE 12 at 9-12. The Court disagrees. In written and oral admissions, plaintiff stated

that he had intercourse with the complainant on December 5, 2018 after she told him no. AR 139,

594-96. He proceeded to have sex with complainant despite her protests because he believed she

was roleplaying despite the fact that she never consented to roleplaying. AR 139. Plaintiff also

admitted that he “heavily” questioned himself afterward and felt upset because he knew he should

have clarified whether complainant wanted to have sex. AR 139. Although some of complainant’s

text messages exhibited indicia of consent, this does not change the fact that plaintiff admitted he

had sex with complainant without her consent. In light of these uncontested facts, the

Superintendent’s conclusion that plaintiff engaged in “intentional touching of a sexual nature …

without the consent of another person” in violation of SI 2018-04 does not run counter to the

evidence before the Academy and is not so implausible that it could not be ascribed to a difference

in view or agency expertise. Motor Vehicle Mfrs. Ass’n of U.S., Inc., 463 U.S. at 43. Thus, the

Court finds that the Superintendent’s decision was not arbitrary and capricious.

In reaching its conclusion, the Board took into consideration the relevant facts and assessed

the countervailing evidence presented by plaintiff. See Yu v. United States Dep’t of

Transportation, 440 F. Supp. 3d 183, 200 (E.D.N.Y. 2020) (Academy’s decision to disenroll

plaintiff was not arbitrary and capricious because it considered the relevant factors when rejecting

plaintiff’s theory that he may have been drugged when he assaulted a man and crashed his car).

The Board acknowledged plaintiff’s testimony that complainant told him to lock the door before

they had intercourse, complainant subsequently sought him out in his room, and said she wanted

to show plaintiff her oral sex skills. AR 309. The Board reasonably discounted plaintiff’s

testimony in light of his uncontested admissions. Doe, 307 F. Supp. 3d at 148-49 (Superintendent

entitled to weigh the evidence where plaintiff contradicts complainant’s testimony and presents

witnesses supporting his version of events). The Board also considered the sexually suggestive

text messages plaintiff submitted into evidence, but discounted them as selective, representing only

12 out of 55 days of text messages. Complainant testified that he excluded texts where she

protested his unwelcome advances. AR 309. Notwithstanding countervailing evidence which the

Board did not specifically address in their recommendation to the Superintendent, e.g., the

complainant’s message to her boyfriend that, “I never felt like I was raped,” AR 109, 309, given

the lower preponderance standard of proof in the Board’s sexual assault disciplinary hearings and

the plaintiff’s multiple admissions that he had non-consensual sex with complainant, the Court

finds there is sufficient evidence supporting the agency’s determination that plaintiff violated that

regulations. See Doe, 307 F. Supp. 3d at 148 n.14, 148-49 (“there is simply no likelihood” the

Superintendent’s finding that plaintiff violated the Academy’s sexual assault policy was arbitrary

or capricious where plaintiff admitted a friend told him complainant was too drunk to consent to

sexual intercourse); see also Yu, 440 F. Supp. 3d at 190-91, 200-01 (sufficient evidence supported

the Superintendent’s determination that an intoxicated midshipman did not recall assaulting a man

not because he was drugged but because he blacked out); cf. Caiola v. Saddlemire, No. 3:12-CV-

00624 (VLB), 2013 WL 1310002, at *6 (D. Conn. Mar. 27, 2013) (no due process violation

because substantial evidence supported finding of sexual assault where plaintiff admitted he did

not accept the complainant’s rejections and persisted until she relented).

For these reasons, the Board’s determination that plaintiff violated SI 2018-04 and

Midshipman Regulations Chapter 3.12 was not arbitrary and capricious.4

2. Fifth Amendment

i. Procedural Due Process

4 In a footnote, plaintiff argues unconvincingly that, because complainant alleged each sexual encounter was

nonconsensual, “[a] finding that any of the four encounters was consensual would belie a finding that the other

encounters were nonconsensual.” DE 12 at 9, n.5. Plaintiff’s syllogism presents a false dilemma. The Board could

have consistently found that complainant consented to one sexual encounter but not another, regardless of what she

alleged. “[C]onsent to sexual conduct, even if once given, may thereafter be withdrawn at any time.” Jacobson v.

Blaise,157 A.D.3d 1072, 1079 (2018) (quoting N.Y. Educ. Law § 6441).

Plaintiff alleges that the hearing violated his procedural and substantive due process rights

guaranteed under the Fifth Amendment. In the context of a Merchant Marine Academy

disciplinary hearing, “due process only requires for the dismissal of a Cadet … that he be given a

fair hearing.” Wasson v. Trowbridge, 382 F.2d 807, 812 (2d Cir. 1967). A “fair hearing” requires

that the accused be “apprised of the specific charges against him” and “given an adequate

opportunity to present his defense both from the point of view of time and the use of witnesses and

other evidence.” Doolen v. Wormuth, No. 18-2996, 2021 WL 3044316, at *8 (2d Cir. July 20,

2021) (quoting Wasson, 382 F.2d at 812); see also Doe, 307 F. Supp. 3d at 150-51 (setting forth

standard of review for procedural due process claims). In addition, “at a hearing at which Academy

officials will determine whether or not a cadet will be expelled[,] the cadet must be allowed to

appear and present evidence, including witnesses, on his behalf.” Doolen, 2021 WL 3044316, at

*8 (quoting Hagopian v. Knowlton, 470 F.2d 201, 211 (2d Cir. 1972), overruled on other grounds

by Phillips v. Marsh, 687 F.2d 620 (2d Cir. 1982)).

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

appropriate government officials [as] the selection training, discipline and dismissal of the future

officers of the military and Merchant Marine,” a disciplinary proceeding conducted “within these

bounds of procedural due process would be proper and immune from constitutional infirmity.”

Andrews v. Knowlton, 509 F.2d 898, 904-05 (2d Cir. 1975) (quoting Wasson, 382 F.2d at 812).

Hence, in the context of a school or military disciplinary proceeding, ordinary procedural due

process requirements may not be required. Doe, 307 F. Supp. 3d at 150, 154 (right to cross-

examine witnesses is not considered an essential requirement of due process in school disciplinary

proceedings) (citing Winnick v. Manning, 460 F.2d 545, 549 (2d Cir. 1972)); see also Crowley v.

U.S. Merch. Marine Acad., 985 F. Supp. 292, 297 (E.D.N.Y. 1997) (“[T]he courts generally have

declined to recognize a right to representation by counsel, as a function of due process, in military

academy disciplinary proceedings concerning non-criminal acts[.]”). Additionally, a due process

violation may occur if an agency fails to follow their own procedures and regulations. See, e.g.,

Lightsey, 567 F. Supp. at 649-50 (Academy’s refusal to reestablish exam grade after Honor Board

exonerated midshipman of cheating violated due process); see also United States ex rel. Accardi

v. Shaughnessy, 347 U.S. 260, 268 (1954).

It is undisputed that plaintiff’s hearing complied with the basic requirements of procedural

due process. As required under Wasson v. Trowbridge, the notice of hearing apprised plaintiff of

the specific charges against him and plaintiff was given an adequate opportunity to present his

defense. AR 1, 357-79. In addition, plaintiff 1) received a copy of the investigatory file; 2)

submitted over 100 pages of text messages into evidence; 3) had the right to challenge the

impartiality of a hearing officer; 4) had the right to seek the advice and assistance of legal counsel;

5) made an opening and closing statement; 6) had the right to question witnesses; 7) called two

witnesses of his own; and 8) had the right to appeal. AR 1, 197-306, 307, 357-378. Unlike in Doe

v. University of Connecticut, where the school never provided an opportunity to cross-examine

certain witnesses and refused to hear from others, 2020 WL 406356, at *4 (D. Conn. 2020), here

the Academy satisfied the requisites of procedural due process in a disciplinary hearing. See Doe,

307 F. Supp. 3d at 127 (due process protections afforded to midshipman at the Academy’s sexual

assault disciplinary hearing “more than sufficient” to satisfy the Fifth Amendment); see also

Cassidy v. United States, No. 17-CV-4187(SJF)(AYS), 2018 WL 6088146, at *13 (E.D.N.Y. Nov.

20, 2018) (procedures in Academy’s sexual assault hearing did not deprive plaintiff of due

process).

Plaintiff claims the Safety Officer provided improper testimony, thereby depriving him of

a fair hearing. First, plaintiff argues that the Safety Officer improperly opined that the plaintiff

sexually assaulted complainant. DE 7-6 at 22. Investigators are generally allowed to testify at

sexual assault disciplinary hearings. Cf. Xiaolu Peter Yu v. Vassar Coll., 97 F. Supp. 3d 448, 466

(S.D.N.Y. 2015) (“no authority … providing that Title IX prohibits a school’s Title IX investigator

from testifying at the disciplinary hearing.”).5 The closest the Safety Officer came to stating as a

matter of fact that plaintiff sexually assaulted the complainant was when he listed the side effects

of PTSD and commented that complainant “related or displayed almost all of these effects of being

sexually assaulted.” AR 384. When later asked by the Deputy Superintendent, the Safety Officer

confirmed that the complainant displayed the characteristics of a sexual assault victim. AR 392-

93. Mere commentary by an investigator in a school disciplinary hearing that a complainant’s

behavior is consistent with sexual assault does not deprive one of a fair hearing. See Yu, 97 F.

Supp. 3d at 466-67 (investigator’s comment that “the information gathered ‘appears to suggest’

that Complainant … exhibited behaviors to suggest that she was incapacitated prior to, and during,

the incident’” did not make the proceeding flawed). The Safety Officer’s brief conjecture that

complainant’s demeanor was consistent with sexual assault, although highly speculative, did not

deprive plaintiff of a fair hearing. Like the investigator in Xiaolu Peter Yu v. Vassar Coll. who

briefly commented that the complainant may have been incapacitated, here the Safety Officer “had

no decision making role in the outcome of the hearing” and “there is no reason to believe that the

panel members could have confused [the Safety Officer’s] testimony to be anything other than the

statements of the investigator.” Yu, 97 F. Supp. 3d at 466.

5 Although Title IX does not apply to the Academy, 20 U.S.C. § 1681(a)(4) (“[T]his section shall not apply to an

educational institution whose primary purpose is the training of individuals for the military services of the United

States, or the merchant marine.”), Xiaolu Peter Yu v. Vassar Coll. still stands for the proposition that it is

commonplace for investigators to testify at sexual assault disciplinary hearings held in academic settings.

Although plaintiff cites Jacobson v. Blaise for the proposition that investigators cannot

give improper testimony at a disciplinary hearing, that case is distinguishable because there the

investigator misstated the law by testifying that consent must be given verbally. 157 A.D.3d at

1079. Plaintiff never alleges that the Safety Officer’s testimony misstated the law or the facts.

Even if the Safety Officer’s testimony were improper, it would be harmless error because the Board

also relied on the testimony of two witnesses who stated that after December 2018 complainant

went from being a social butterfly to depressed AR 309. See Doolen, 2021 WL 3044316, at *9

(“[T]he legal standard requires [plaintiff] to show more than the mere existence of a procedural

violation; he must also show the violation caused substantial prejudice.”).

Second, plaintiff argues the Academy failed to follow its own procedures because the

Safety Officer’s opinion testimony that complainant’s behavior was consistent with sexual assault

and his “expert” testimony that victims of sexual assault have difficulty recalling traumatic events

went far beyond a “brief statement” summarizing the investigation. DE 12 at 13. This Court does

not condone the Safety Officer’s digression, however brief, into opinion testimony during what is

supposed to be an impartial summary of the facts, and finds questionable the Safety Officer’s broad

generalization regarding victims’ ability to recall traumatic events. At the same time, the SOP

does not state that an investigator is prohibited from offering opinion or expert testimony, AR 6-

16, and it is not per se unconstitutional to have multiple roles in a disciplinary hearing, see Doe,

307 F. Supp. 3d at 150-51 (Superintendent’s multiple roles as “prosecutor, fact-finder, and appeals

court” do not render sexual assault hearing per se unconstitutional); Wasson, 382 F.2d at 813

(“combination of the functions of policeman and judge” in Merchant Marine disciplinary hearing

is not per se unconstitutional). The Safety Officer’s executive summary, which spans twelve pages

of the hearing transcript and objectively recounts the alleged sexual assaults from the perspectives

of both complainant and plaintiff, contains just a little over two pages of the opinion and expert

testimony to which plaintiff objects. AR 380-92. Hence, the Safety Officer’s testimony

constituted a “brief statement” of the investigation and substantially complied with the procedures

set forth in the Academy’s SOP.

Third, plaintiff argues that as an “expert” witness the Safety Officer should not have opined

whether the alleged victim was in fact sexually assaulted. DE 7-6 at 21-22. However, all the cases

cited by plaintiff – People v. Williams, 20 N.Y.3d 579, 584 (2013); People v. Carroll, 95 N.Y.2d

375, 387 (2000); and People v. Jerge, 90 A.D.3d 1486, 1487 (2011) – are inapposite because

plaintiff’s hearing was not a criminal trial. Doe, 307 F. Supp. 3d at 127 (“[D]ue process does not

mandate the use of all of the protections of a criminal trial in this type of disciplinary proceeding.”).

As set forth in the SOP, the rules of evidence do not apply in the Academy’s sexual assault

disciplinary proceedings. AR 6.

Without question, some of the Safety Officer’s quasi-medical testimony bordered on

quackery, and the Academy should not have permitted this testimony. Even assuming some of the

Safety Officer’s psychological and endocrinological assertions could have scientific basis – a

proposition that seems highly dubious – it seems beyond peradventure that he lacked the

qualifications to provide these opinions. This error, though, is mitigated by the Superintendent’s

decision, which appeared to put no weight on the Safety Officer’s foray into medical science, and

is amply supported by independent evidence, including the plaintiff’s admissions.

Although plaintiff claims he would have retained an expert had he known that the Safety

Officer would give expert testimony, DE 7-1 ¶¶ 53-55, plaintiff was notified that the Safety Officer

would testify at the hearing and plaintiff had the right to call his own witnesses at trial, AR 1-4.

At the hearing, plaintiff never objected to the Safety Officer’s testimony regarding sexual assault

victims’ difficulty recalling traumatic events – even when plaintiff elicited this testimony during

his questioning of the Safety Officer. AR 401-02. Plaintiff argues that the Safety Officer’s expert

testimony that trauma prevents sexual assault victims from accurately recalling events made it

impossible for him to mount a defense against the complainant. DE 7-6 at 22-23. Any hypothetical

prejudicial effect from the Safety Officer’s testimony is harmless given the strong countervailing

evidence supporting the Board’s determination that plaintiff sexually assaulted complainant.

Doolen, 2021 WL 3044316, at *9. For these reasons, the Safety Officer’s testimony did not

deprive plaintiff of a fair hearing.

Plaintiff also claims that he was deprived of a fair hearing because the Safety Officer read

only some of the text messages he submitted. DE 12 at 12. The Board, not the Safety Officer, is

charged with making a determination on the basis of the evidence before it. In its recommendation

to the Superintendent, the Board considered the “large volume of sexually explicit text messages”

submitted by plaintiff. AR 309. The Acting Maritime Administrator then upheld the

Superintendent’s decision after reviewing the “written record in its entirety” including plaintiff’s

appeal, which painstakingly detailed the many explicit text messages between himself and

complainant. AR 322-24, 946. Because the agency considered all the evidence plaintiff submitted,

including the text messages, plaintiff was not deprived of a fair hearing.

Plaintiff’s additional argument that the Board failed to follow its own procedures because

hearing officers must receive an annual training on the adjudication of sexual misconduct claims

and seven separate subject areas also fails. DE 7-6 at 23. The SOP does not state that the Academy

must prove to plaintiff that the hearing officers have completed the required training. AR 6.

Regardless, the hearing officers did in fact receive the required training in compliance with the

SOP. DE 17 at 18.

ii. Disproportionate Punishment

Plaintiff argues unpersuasively that the Superintendent’s decision violates due process

because disenrollment is disproportionate to the alleged misconduct. DE 7-6 at 23-24. SI 2018-

04 explicitly states that Class I violations such as sexual assault are subject to the “full range of

penalties … set out in the Midshipman Regulations, up to and including disenrollment.” AR 948.

Expulsion is a constitutionally valid sanction for violations of a military academy Honor Code.

See Andrews, 509 F.2d at 907-08 (West Point’s sole penalty of expulsion does not offend due

process). While some could disagree as to the appropriate punishment on these facts, the Court is

“loathe to substitute its judgment for that of the [Academy], as ‘[f]ew decisions properly rest so

exclusively within the discretion of the appropriate government officials [as] the selection,

training, discipline and dismissal of the future officers of the military and Merchant Marine.’” Sell

v. United States, No. 19-CV-3105 (RJD) (RER), 2020 WL 3791847, at *5 (E.D.N.Y. July 7, 2020)

(citing Wasson, 382 F.2d at 812); Andrews, 509 F.2d at 905 (“[W]e recognize the constitutional

permissibility of the military to set and enforce uncommonly high standards of conduct and

ethics.”). The Academy’s decision to disenroll plaintiff is soundly within its discretion and does

not violate due process.6

For these reasons, the Court finds that plaintiff has failed to establish a procedural due

process violation.7

6 Plaintiff points out that another midshipman found guilty of sexual assault was suspended for only nine weeks. DE

7-6 at 24. Regardless of the punishment administered in that case, disenrollment is not an unusual penalty for sexual

assault. Since 2014, the Academy has disenrolled 8 out of the 9 midshipmen found responsible for violating the

Academy’s sexual assault policy. DE 17 at 29.

7 Because the Academy’s decision is not arbitrary and capricious, plaintiff cannot satisfy the more demanding

standard required for a substantive due process violation. Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir.

1999) (“Substantive due process . . . . does not forbid governmental actions that might fairly be deemed arbitrary or

capricious . . ..”) (citing Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). Furthermore, plaintiff’s

conclusory allegation in the complaint that the Academy’s decision was motivated by bad faith, DE 1 ¶ 142, is

insufficient to plausibly allege a substantive due process claim. Horton v. Westling, 284 F. Supp. 3d 213, 222

(N.D.N.Y. 2018), aff’d, 765 F. App’x 531 (2d Cir. 2019). Nothing about the plaintiff’s hearing, which provided him

D. Balance of Equities and Public Interest

Because plaintiff has not established he is likely to prevail on the merits and seeks a

preliminary injunction that will affect governmental action “taken in the public interest pursuant

to a statutory or regulatory scheme,” the Court need not consider whether, in the alternative, this

case presents sufficiently serious questions going to the merits to make them a fair ground for

litigation. See Sussman, 488 F.3d at 140; Doe, 307 F. Supp. 3d at 143 n.11. Assuming arguendo

that this lower standard applied, the Court would still conclude the standard is not met for the

reasons discussed herein. Furthermore, the public interest weighs heavily against granting a

preliminary injunction because it is in the national interest that only Merchant Marine Officers of

the highest moral character serve and defend the United States. Wasson, 382 F.2d at 812

(“Instilling and maintaining discipline and morale in these young men 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.”).

CONCLUSION

Based on the foregoing, it is hereby Ordered that:

• Plaintiffs’ Motion for a Preliminary Injunction, which has been consolidated with

the merits of the underlying action, is denied; and

• Judgment shall be entered in favor of defendants.

The Clerk is directed to enter judgment as above and close the case.

Dated: Central Islip, New York

August 3, 2021

/s/ Gary R. Brown__________

Gary R. Brown

United States District Judge

a wide array of procedural rights and protections, can be said to “shock the conscience.” Doe, 307 F. Supp. 3d at

156-57.