Moore, Friendly and Anderson, Circuit Judges.
Robert F. Wasson, Jr., appeals from an order denying without a hearing his motion to restrain Acting Secretary of Commerce Trowbridge from permitting his expulsion from the Merchant Marine Academy in alleged violation of his constitutional rights and dismissing his complaint. Judge Bruchhausen held that as the allegations of the complaint did not on their face amount to a deprivation of due process, this suit was barred by the doctrine of sovereign immunity. However, whether any question of due process is involved is dependent upon such facts relating thereto as may be adduced and, therefore, appellant's constitutional claims cannot be dismissed without an evidentiary hearing. Hence, we remand the case for a hearing on the constitutional sufficiency of the Academy's proceedings against Wasson.
The Merchant Marine Academy (the Academy) located at Kings Point, New York, is the instrumentality of the federal government charged with the responsibility of training the officers of the United States Merchant Marine. Although the primary responsibility of the merchant marine is the transport of water-borne commerce, in times of need it acts as an auxiliary to the United States Navy and on graduation, a Cadet may receive a Reserve Commission in the Navy. Indeed, because of the vital national interest served by the merchant marine and the hazards which are commonly encountered, it accurately may be said that the responsibilities of merchant marine personnel are comparable to those of the Navy and Coast Guard. Chief Justice Maltbie once observed
that the successful prosecution of (the Second World War) would hardly have been possible without the transportation facilities afforded by merchant vessels operating under the war shipping administration and that the persons who served in those vessels were subject to most serious danger of injury or loss of life from risks directly inherent in armed conflict at sea and on the shore [Walsh v. Jenks, 135 Conn. 210, 62 A.2d 773 (1948)].
The Regulations of the Academy themselves recite the basis for the prerequisite that Cadets conduct their affairs with a military bearing:
The standards of discipline required by Academy Regulations must necessarily be high, since offenses which might be condoned in other walks of life cannot be tolerated aboard ships of the Merchant Marine or Navy where sins of omission or commission might cost human lives or millions of dollars worth of property. The Merchant Marine is run entirely by the discipline of the officers, by their standards, so their ships are run, and good discipline among all officers is paramount.*fn1
The appellant Wasson is a third-year student at the Academy. On March 30, 1967, he engaged in, and perhaps led, "an unauthorized mass movement" of his fellow students, the object of which was to throw a Cadet Regimental Officer into Long Island Sound. As such conduct indisputably constituted a violation of Academy regulations, the disciplinary measures, about which Wasson now complains, were instituted.
Breaches of Academy discipline are comprehensively governed by the Regulations of the Academy and fall into three general classifications (Art. 200.04). Class I offenses are of a serious nature and may be punished by immediate dismissal. Class II offenses are of intermediate seriousness and may be punished by the assignment of not more than 100 demerits. Class III offenses are the least serious and the punishment cannot exceed 50 demerits. If a Cadet accumulates over a fixed number of demerits in a given year, which for a third-year student such as Wasson is 200, he becomes liable to dismissal (Art. 200.13). Reports of misconduct may originate from an officer, an instructor or a Cadet officer (Art. 200.05) and are presented to the Battalion Officer. He either investigates the report or assigns another to investigate and then forwards the report with his recommendations to the Regimental Officer (Art. 200.07). Thereafter the disciplinary procedure varies radically depending on how the offense is classified by the Regimental Officer. If the offense falls within Class III, the Regimental Officer himself determines the punishment (Art. 200.07(c) (2)) and there is no appeal (Art. 200.11). At the other extreme, if a Class I offense is involved, the Cadet is entitled to numerous procedural safeguards. He receives a written statement of the charges against him (Art. 200.09(a)) to which he may reply. He is entitled to a hearing before a Board of officers not drawn from the same Regiment as the Cadet (Art. 200.09(a)). At the hearing he may be represented by counsel of his choosing although only officers on the Academy staff are eligible (Art. 200.10(a)). Significantly, however, the Regulations charge counsel with serving as an advisor to the Cadet, not with advocacy, and it is his duty to assist in finding the truth, not in obscuring it (Art. 200.10(b)). The decision of the hearing Board in form is a recommendation to the Superintendent of the Academy. If the recommendation is for dismissal, the Superintendent in turn may forward such recommendation to the Maritime Administrator for final action. At each of these stages, the Cadet has an opportunity to appeal (Arts. 200.09(c) and 200.11(b)).
Wasson was charged with a Class II offense for his activities of March 30th. On April 10th he was served with a detailed specification of the charges against him and notified that a hearing would be held on April 13th. As permitted by the Regulations, Wasson filed his own statement prior to the hearing. He also made a demand for counsel which was denied as the Regulations did not provide for counsel at hearings on Class II offenses. Contrary to the procedure governing a Class I offense, the Regimental Board of Investigation which hears a Class II offense is drawn from the same Regiment as the Cadet (Art. 200.08(a)). However, Article 200.08 of the Regulations does provide that "the reporting or investigating officer shall not sit as a member of the Board." On April 12th, Wasson protested the composition of the panel on the ground that it violated this Article. The protest was rejected on the ground that none of the members of the panel had been involved with Wasson but the accompanying memorandum of the Regimental Officer is ambiguous on the question of whether any members of the panel had reported or investigated other Cadets involved in the March 30th incident. On April 13th, this panel conducted its investigation and awarded Wasson 75 demerits. Because he had previously accumulated 148 demerits, this award subjected Wasson to dismissal from the Academy. Pursuant to the Regulations (Art. 200.11(a)), Wasson appealed the decision to the Superintendent of the Academy who conferred with Wasson and rejected his appeal.
Because Wasson had now exceeded his maximum allowance of demerits and was subject to dismissal, the Superintendent convened the Senior Board of Aptitude, Conduct and Discipline Review which is drawn from the Academy staff and faculty and whose function under Article 200.13(f) was "to interview the Cadet and to review his entire discipline and conduct record at the Academy, and to determine whether or not the Cadet should be retained." Wasson again demanded counsel which was denied. He appeared before the Board and presented his case but the Board recommended dismissal. Wasson again appealed to the Superintendent who again rejected the appeal. Wasson's present posture is that the Superintendent has recommended his dismissal to the Maritime Administrator and it is not contested that final action by the Administrator is a mere formality.
There is an undue wealth of controversy in the briefs before this Court on the issue of whether this suit is barred because it is in essence against the United States. The Academy appears to concede, however, that if an officer of the United States violated Wasson's constitutional rights in the dismissal procedure, the doctrine of sovereign immunity is no bar to this suit for injunctive relief against that dismissal. Indisputably the District Court had jurisdiction to determine whether the procedure applied to Wasson was constitutionally sufficient. Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1907); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1951); Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 81 S. Ct. 1743, 6 L. Ed. ...