The opinion of the court was delivered by: WEINSTEIN
MEMORANDUM ON PRELIMINARY INJUNCTION
WEINSTEIN, District Judge.
This action is brought by two former Midshipmen at the United States Merchant Marine Academy. Having been dismissed from the Academy on October 28, 1969 after a finding that they had violated regulations by using marijuana on campus, they seek an order from this Court requiring their readmission.
The request for an injunction is based on two main contentions: first, the hearing at which guilt was determined did not conform to the requirements of Academy regulations or due process - particularly in the denial of legal counsel - and, second, admissions of the plaintiffs, which constituted the sole evidence presented against them, should not have been used. The defendants, in addition to denying plaintiffs' claims, argue that this Court lacks power to grant relief because of the doctrines of sovereign immunity, res judicata and substantial evidence supporting an administrative determination.
On the basis of the preliminary hearing, the Court finds that it has the power to act. There is a substantial probability that plaintiffs can demonstrate that the alleged admissions could not be used by the Academy in proceedings against them, and that they were improperly dismissed. The substantial harm plaintiffs will suffer if they are illegally excluded from school in their fourth and final year requires the issuance of a preliminary injunction pending a final determination.
The evidence adduced by the plaintiffs demonstrates, for purposes of this preliminary injunction, the following: On October 10, 1969 the plaintiffs, along with fifteen other Midshipmen, were interrogated by two Federal Narcotics Agents and a Nassau County Detective concerning the use of marijuana on campus. These interrogations took place in Wiley Hall, the Academy's Administration Building. They were conducted at the request of the Academy and with the assistance of Academy personnel. A member of the Academy's staff accompanied each student individually to the interrogation room and then left him alone with the three investigators.
The plaintiffs were told by the agents at the beginning of the interview that they were at the Academy to investigate and help solve the narcotics problem there. The impression given was that sources of narcotics were being sought. Assurances were made that plaintiffs could be "frank" and "speak freely" since nothing they said would be used against them. No distinction was drawn between use in possible criminal and in possible Academy disciplinary proceedings. The agents noted that only a failure to cooperate and speak truthfully would result in a report to the Academy. No promise, however, was made that upon speaking the plaintiffs would be immune from any Academy action. Each plaintiff was interrogated twice on that same day.
The other Midshipmen who were interviewed confirmed plaintiffs' version of the promises given by the agents. When any Midshipman questioned the agent he was reassured that nothing that was said "would leave the room." Since the government has refrained from submitting contradictory evidence, despite the opportunity to do so, we accept at this time the Midshipmen's version of what transpired behind the closed door.
The plaintiffs were formally suspended from the Academy on October 13, 1969 on the ground that during the interrogation on October 10 they had admitted to the use of marijuana on campus. Formal charges based upon these same grounds were filed against the plaintiffs on October 15 and the Superintendent, pursuant to Academy regulations, appointed a Special Board of Officers to hear the case. Plaintiffs' October 17 request to be represented by legal counsel at these proceedings was denied on that same day.
A Special Board of Officers consisting of faculty members was convened on October 20. Present at all nonexecutive Board sessions were two junior faculty members who served as "counsel" to the plaintiffs. These "counsel" had no legal training.
The Special Board questioned ten Midshipmen, including the two plaintiffs, concerning promises made by the agents during the investigation. They also spoke to one of the Narcotics Agents by telephone about the same subject. The only other evidence before the Board was the written report of the Narcotics Agents containing the plaintiffs' admissions.
On October 21 the Special Board issued its findings that plaintiffs had used marijuana. They recommended that both be dismissed from the Academy. These findings were supplemented on October 28 by an additional finding that the ...